MIGRANTS AND MIGRANT WORKERS
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.
1. States Parties shall ensure respect for the cultural identity of migrant workers and members of their families and shall not prevent them from maintaining their cultural links with their State of origin.
1. A State Party to the present Convention may at any time declare under the present article that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim that their individual rights as established by the present Convention have been violated by that State Party. No communication shall be received by the Committee if it concerns a State Party that has not made such a declaration.
2. The Committee shall consider inadmissible any communication under the present article which is anonymous or which it considers to be an abuse of the right of submission of such communications or to be incompatible with the provisions of the present Convention.
3. The Committee shall not consider any communication from an individual under the present article unless it has ascertained that:
(a) The same matter has not been, and is not being, examined under another procedure of international investigation or settlement;
(b) The individual has exhausted all available domestic remedies; this shall not be the rule where, in the view of the Committee, the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to that individual.
4. Subject to the provisions of paragraph 2 of the present article, the Committee shall bring any communications submitted to it under this article to the attention of the State Party to the present Convention that has made a declaration under paragraph 1 and is alleged to be violating any provisions of the Convention. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.
5. The Committee shall consider communications received under the present article in the light of all information made available to it by or on behalf of the individual and by the State Party concerned.
6. The Committee shall hold closed meetings when examining communications under the present article.
7. The Committee shall forward its views to the State Party concerned and to the individual.
8. The provisions of the present article shall come into force when ten States Parties to the present Convention have made declarations under paragraph 1 of the present article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter that is the subject of a communication already transmitted under the present article; no further communication by or on behalf of an individual shall be received under the present article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party has made a new declaration.
The Human Rights Committee includes non-citizen minorities in its understanding of the protections of Article 27 ICCPR.292 As GC 23 notes: ‘The terms used in article 27 indicate that the persons designed to be protected are those who belong to a group and who share in common a culture, a religion and/or a language. Those terms also indicate that the individuals designed to be protected need not be citizens of the State party.’ Others have highlighted the applicability of minority rights to immigrants among other non-citizen groups, given Article 27 refers to ‘persons’ without distinction as to nationality.293 Minority Rights Group International includes migrant workers in its advocacy, seen in a recent report focussing on the world of work which addressed ‘members of minority communities, Indigenous peoples, migrants and other marginalized communities’.294 Here, migrant workers are not considered as minorities per se but rather are protected as a separate category, with the report referring to ‘minorities, Indigenous peoples and migrants’. However, it is also apparent that there are areas of clear overlap, where migrant workers in situations of exploitative work are also minorities or Indigenous peoples. This is seen for example in Thailand, which MRG’s report considers ‘emblematic of broader issues faced by migrant workers’, where many migrant workers are ethnic minorities from Myanmar some of whom also identify as Indigenous peoples.[295] The report documents a range of violations experienced by ethnic minority migrant workers from Myanmar in Thailand, such as the Shan, Karen, Arakan and Rohingya, who often experience different forms of exploitation.296
The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICMW) provides some recognition of its potential in relation to minority rights protections. Its Article 31(1) reads: ‘States Parties shall ensure respect for the cultural identity of migrant workers and members of their families and shall not prevent them from maintaining their cultural links with their State of origin.’ The Committee on Migrant Workers (CMW) has not issued a General Comment in relation to minorities or Indigenous peoples, or referred to these groups in any of its other General Comments to date, but this aspect of its mandate should be further explored. In concluding observations to States Parties, the CMW has raised such issues. The Committee recommended to the Philippines that it conduct a study on the intersection of migration trends of women workers, identifying those ‘who are Indigenous [and] those who are Muslim’.297 It expressed concern in relation to Chile at the ‘situation of Indigenous migrant women deprived of their liberty by the investigative police’, noting also the ‘number of complaints received and investigated for cases of torture or cruel, inhuman or degrading treatment or punishment of Indigenous migrant women’.298 The Committee raised to Morocco the need for immediate measures to combat the ‘social and racial stigmatization of migrant workers, in particular sub-Saharan migrant workers’.299 It issued recommendations to Libya in relation to ‘sexual violence committed against migrant workers and members of their families, especially those from sub-Saharan Africa and belonging to religious minorities, particularly Christians, by Libyan officials’.300
Article 77 ICMW provides for individual communications. Because it is an optional article, there is no minimum number of ratifications required for it to enter into force, and any State Party that makes the declaration can immediately be the subject of an individual communication. However, just three States Parties to ICMW have opted in to date – Mexico in 2008, Uruguay in 2012 and most recently Ecuador in 2018. There have been no individual communications taken against any of these three States Parties.
292 See HRC GC 23, supra n 3. For example, the HRC recommended to China (Hong Kong) that the State Party: ‘intensify its efforts to improve the quality of Chinese language education for ethnic minorities and non-Chinese speaking students with an immigrant background’. See CCPR/C/CHN-HKG/CO/3 (2013) para 22.
293 Elisa Ortega Velazquez, ‘Minority Rights for Immigrants: From Multiculturalism to Civic Participation’ (2017) X(1) Mexican Law Review 103-126, at 111-112.
294 Minority Rights Group International, ‘Minority and Indigenous Trends 2022: Focus on Work’ (London: MRG 2022) Chapter 1 <https://minorityrights.org/minority-and-indigenous-trends-2022-focus-on-work/>
295 Ibid Chapter 4.
296 Ibid.
297 UN Doc. CMW/C/PHL/CO/3 (2023) para 28(a).
298 UN Doc. CMW/C/CHL/CO/2 (2021) para 36(a) and (b).
299 UN Doc. CMW/C/MAR/CO/2 (2023) para 27.
300 UN Doc. CMW/C/LBY/CO/1 (2019) para 28.
