CYIL vol. 10 (2019)

DIANA CUCOS CYIL 10 ȍ2019Ȏ international treaties in the field of migration, assumes state control and regulation of migration, and stipulates the requirement upon states to collaborate “with a view to preventing and eliminating illegal or clandestine movements, and employment of migrant workers in an irregular situation”. 48 This does not affect the obligation of states to guarantee and respect the rights protected in the CMW. Whilst the CMW obliges states to take “all adequate and effective measures” to eradicate the employment of irregular workers, it also underlines that “the rights of migrant workers vis-à-vis their employer arising from employment shall not be impaired”. 49 1. Diplomatic protection – the chronologically oldest protection mechanism – has assumed a greater importance. International law has long recognized the right of states to protect their nationals abroad. Migrant workers often experience a disadvantage vis-à-vis the nationals of the host country in terms of legal protection offered by the local authorities, which has justified assistance and support from their state of nationality against the state of residence. This may even apply to permanent migrants. For example, the persistent reports of mistreatment of foreign domestic workers in Middle Eastern countries of Asian origin, which clearly demonstrates that such migrants are in need of protection of their state of nationality, lacking other means to protect themselves against abuses. 50 There are two ways in which states can protect and assist their nationals abroad: through diplomatic protection and consular assistance. It is important to distinguish these two means of protection. Diplomatic protection is a mechanism allowing the state of nationality to invoke the responsibility of the receiving state for injury to its nationals resulting from a violation of a rule of international law, and, thus, represents a part of the law of state responsibility. It is of a formal nature within the inter-state sphere and not very common, and in addition, it is less rapid than consular assistance. Consular assistance is established in Article 5 of the Vienna Convention on Consular Relations 51 . It leads specifically to more comprehensive protection of migrants. When a state arrests a non-citizen (migrant), international law requires the arresting state to inform him of his right to contact the consular officials of his home country, and to communicate such a request to consular officials “without delay”. Consular officials are entitled to visit the arrested national and may provide assistance, including arranging legal representation. 2. Human rights treaty system – international human rights law created a system under which individuals are entitled to the full and effective enjoyment of rights whether they are in their own country or abroad. These rights derive from human rights treaties which the state assumed the obligation to respect. When states ratify a human rights treaty, they give their consent to be bound by its provisions and to implement them through national law and policy. The main way treaties are enforced is through a process continual monitoring based upon the obligation of States to provide Country Reports to an independent team of experts, Mechanisms for Protection International protection of migrants takes two forms:

48 Article 68 (1). 49 Article 68 (2).

50 VERMEER-KÜNZLI, A., Diplomatic Protection and Consular Assistance of Migrants. In: CHETAIL, V., BAULOZ, C. (eds.) Research Handbook on International Law and Migration , Edward Elgar Publishing, 2014, pp. 265-280. 51 Vienna Convention on Consular Relations, Article 36.

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