How do poorly ratified international human rights treaties protect victims? : case of the migrant workers convention in a non-member state

다국어 초록 (Multilingual Abstract)

How do poorly ratified international human rights treaties protect victims? Although there are many empirical studies on the effects of human rights treaties on state behavior, little attention has given to examine treaty effects in non-member states. However, the tendency of paying disproportionate attention to ratified states could give incomplete or even faulty understandings of the effects of human rights treaties. This is because treaty effects are often indirect and could be independent of ratification. Drawing on literature on regime complexity, I argue that strategies of and interaction between rights defenders and states could explain the effect mechanism of unratified human rights treaties. I argue that unratified treaties generally share the same effects as ratified treaties, but they are less visible compared to ratified ones. This is because while most effects that IHRTs can have are independent of ratification except for those involve treaty bodies, rights defenders rely less on unratified treaties due to its low level of legitimacy when there are multiple treaties available. I demonstrate my argument by examining the effects of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW) in Canada. Through a detailed case study on Nell Toussaint v. Canada case, I demonstrate the effects of the ICMW to protect the right to healthcare of an undocumented migrant in a country that is not a party to the treaty.

목차 (Table of Contents)

• 1. Introduction 1
• 1.1 Research Question 1
• 1.2 Definition 4
• 1.2.1 International Human Rights Treaties 4
• 1.2.2 Effect 6
• 1.3 Research Design 7
• 1.3.1 Process Tracing and Case Selection 7
• 1.3.2 Evidence 10
• 1.4 Overview of the Thesis 11
• 2. Theory and Argument 13
• 2.1 Existing Theories on the Effects of International Law 13
• 2.1.1 Effects of International Human Rights Treaties 13
• 2.1.2 Consequences of the Complexity on the Effects of International Law 17
• 2.2 Argument: Effect Mechanism of Unratified International Human Rights Treaties 19
• 2.2.1 Strategies of and Interaction between Actors in Domestic Politics 22
• 2.2.2 Strategies of and Interaction between Actors in International Politics 25
• 2.3 Alternative Hypotheses 28
• 3. Case Study - Nell Toussaint v. Canada in Domestic Politics 31
• 3.1 The Case: Nell Toussaint v. Canada 31
• 3.2 Before the Long Fight: Background on the Case 34
• 3.3 Federal Court of Canada 39
• 3.3.1 Main Issues and Claims 40
• 3.3.2 Strategic Use of International Human Rights Treaties 42
• 3.3.3 Effects of the Unratified Treaty 47
• 3.3.4 Summary 51
• 3.4 Federal Court of Appeal 53
• 3.4.1 Main Issues and Claims 54
• 3.4.2 Strategic Use of International Human Rights Treaties 56
• 3.4.3 Effects of the Unratified Treaty 60
• 3.4.4 Summary 61
• 3.5 Conclusion 63
• 4. Case Study - Nell Toussaint v. Canada in International Politics 67
• 4.1 Supreme Court of Canada 67
• 4.1.1 Main Issues and Claims 67
• 4.1.2 Strategic Use of International Human Rights Treaties 69
• 4.1.3 Effects of the Unratified Treaty 71
• 4.1.4 Summary 75
• 4.2 Human Rights Committee 76
• 4.2.1 Comments, Responses, and Decision on Admissibility 77
• 4.2.2 Comments, Responses, and Decision on Human Rights Violations 81
• 4.2.3 Effects of the Unratified Treaty 88
• 4.2.4 Summary 90
• 4.3 After the Human Rights Committee’s Decision 92
• 4.4 Conclusion 94
• 5. Analysis 99
• 5.1 Findings from Case Study 99
• 5.2 Examination of Alternative Hypotheses 102
• 5.2.1 Domestic Politics 102
• 5.2.2 Ratified International Human Rights Treaties 104
• 5.2.3 NGO Networks 105
• 6. Conclusion 108
• 6.1 Summary 108
• 6.2 Implications for Further Research 112
• Bibliography 115