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Legal Status and Rights of Undocumented Workers Advisory Opinion OC-18/03

Published online by Cambridge University Press:  27 February 2017

Sarah H. Cleveland
Sarah H. Cleveland*
Affiliation:
University of Texas School of Law
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Type
International Decisions
Information
American Journal of International Law , Volume 99 , Issue 2 , April 2005 , pp. 460 - 465
Copyright
Copyright © American Society of International Law 2005

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References

1 Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC–18/03 (Inter–Am. Ct. H.R. Sept. 17, 2003)Google Scholar [hereinafter Advisory opinion]. The advisory opinions and other decisions of the Inter-American Court of Human Rights are available at <http://www.corteidh.or.cr/juris_ing/index.html>.

2 Advisory opinion, supra note 1, para. 2.

3 535 U.S. 137 (2002). Since the United States has the world’s largest population of undocumented workers, and over half of those workers are from Mexico, the status of Mexican migrant workers in the United States figures prominently in the overall conditions confronting migrant workers in the Americas.

4 Canada, Costa Rica, El Salvador, Honduras, and Nicaragua submitted amicus briefs and oral interventions, whereas Argentina, Brazil, the Dominican Republic, Panama, Paraguay, Peru, and Uruguay attended as observers. Advisory opinion, supra note 1, paras. 7–48.

5 Id., para. 101. The Court based its decision on, inter alia, the nondiscrimination and equal protection provisions of the American Declaration on the Rights and Duties of Man, the American Convention on Human Rights, the International Covenant on Civil and Political Rights, the OAS Charter, and the Universal Declaration of Human Rights. See Advisory opinion, supra note 1, para. 86 & n.33.

6 Advisory opinion, supra note 1, para. 106.

7 Id., para. 114 (quoting General Assembly Resolution (on “Protection of Migrants”), see infra note 34 and accompanying text).

8 Id., paras. 132, 159.

9 Id., paras. 82–95.

10 Id., para. 119.

11 Id., paras. 119, 169.

12 Id., para. 135.

13 Id., para. 134.

14 Id.

15 Id., paras. 134–36.

16 Id., paras. 147–49.

17 Id., para. 157.

18 Id., paras. 150, 154.

19 Id., paras. 157–58.

20 Id., paras. 107–08,121.

21 Id., para. 126.

22 The Convention, GA RES. 45/158 (Dec. 18, 1990), provides that unauthorized migrant workers are entitled to nondiscrimination and equality before the law (Articles 7, 18), protection from slavery and forced labor (Article 11), and equal treatment with respect to remuneration, overtime, hours of work, weekly rest, holidays with pay, health and safety, termination of the employment relationship, child labor, and restrictions on home work (Article 25). The Convention affords undocumented workers permission only to join, but not to form, trade unions (Article 26), and denies them equal protection with respect to, inter alia, vocational training and access to social and health services (Article 43) and unemployment benefits (Article 54).

23 As of April 7, 2005, there were twenty–eight states parties to the Convention, which went into force in July 2003. Most of those are migrant–sending, rather than migrant–receiving, states. See Present State of Ratifications and Signatures of the UN Migration Convention, at <http://www.unesco.org/migration/>.

24 See, e.g., International Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 26,999 UNTS 171;Gueye v. France, Communication No. 196/1985, CCPR/C/35/D/196/1985(1989) (finding that France’s denial of military pensions to noncitizens constituted discrimination based on “other status” under ICCPR Article 26).

25 See supra note 24.

26 Human Rights Committee, General Comment 15, The Position of Aliens Under the Covenant (Twenty–seventh Session, 1986), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, paras. 1–2, UN Doc. HRI\GEN\l\Rev.1 at 18 (1994), available at <http://hei.unige.ch/humanrts/gencomm/hrcomms.htm> (discussed in Advisory opinion at para. 94).

27 ILO Convention (No. 143) Concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers, June 24, 1975 [hereinafter Migrant Workers Convention]. ILO legal materials are available online at <http://www.ilo.org/ilolex/>.

28 ILO Recommendation (No. 151) Concerning Migrant Workers, June 24, 1975.

29 International Labour Office Governing Body, Report of the Director–General: First Suplementary Report: Opinions Relative to the Decisions of the International Labour Conference, para. 7, ILO Doc. GB.285/18/1 (2002), available at <http://www.ilo.org/public/english/standards/relm/gb/docs/gb285/> [hereinafter Opinion on the Rights of Migrant Workers]. Recommendation 151 regarding the rights of migrant workers, supra note 28, paras. 8(2), 34, provides that irregular migrant workers are entitled to equality of treatment with respect to trade union rights, remuneration for work performed, severance payments, and workers’ compensation benefits.

30 Opinion on the Rights of Migrant Workers, supra note 29, para. 8 (quoting Migrant Workers Convention, supra note 27, Art. 1).

31 Id., para. 11.

32 ILO Committee on Freedom of Association, Complaint Against the Government of Spain Presented by General Union of Workers of Spain (UGT), Case No. 2121, paras. 559–61, in 327th Report of the Committee on Freedom of Association, ILO Doc. GB.283/8, para. 548 (Mar. 2001), available at <http://www.ilo.org/public/english/standards/relm/gb/docs/gb283/> (Spanish law allowing only documented foreign workers to exercise trade union rights violated freedom of association). Following the U.S. Supreme Court decision in the Hoffman case, the ILO Committee on Freedom of Association reiterated this view in Complaints Against the Government of the United States Presented by the American Federation of Labor and Congress of Industrial Organization (AFL–CIO) and the Confederation of Mexican Workers (CTM), Case No. 2227, para. 610, in 332nd Report of the Committee on Freedom on Association, ILO Doc. GB.288/7, para. 551 (Nov. 2003), available at <http://www.ilo.org/public/english/standards/relm/gb/docs/gb288/> (finding that the remaining remedies available to undocumented workers for illegal dismissals through the National Labor Relations Board were “inadequate to ensure effective protection against acts of anti–union discrimination”).

33 See, for example, the following reports by the ILO Committee of Experts on the Application of Conventions and Recommendations: Individual Direct Request Concerning Convention No. 111, Antigua and Barbuda, 2000, para. 6 (noting with approval that national employment law did not discriminate on the basis of alienage or nationality); Individual Direct Request Concerning Convention No. 111, Poland, 1992, para. 7 (requesting information regarding equality of treatment in employment of non–Polish nationals); and Individual Observation Concerning Convention No. 111, Denmark, 1991 (noting that discrimination against foreign nationals on grounds other than residence and nationality is prohibited by ILO Convention No. 111 (nondiscrimination)). Reports of the Committee of Experts, organized by country or convention, are available at <http://webfusion.ilo.org/public/db/standards/normes/appl/index.cfm?lang=EN>. The ILO materials referred to here were briefed extensively and also summarized in the Court’s discussion of the amicus materials, but were not expressly relied upon by the Court.

34 Protection of Migrants, GA Res. 54/166, para. 4 (Feb. 24, 2000) (discussed in Advisory opinion at paras. 114–15).

35 Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live, GA Res. 40/144 (Dec. 13, 1985).

36 Dec. 16, 1966, 999 UNTS 3.

37 As of April 8, 2005, the countries that have ratified the American Convention on Human Rights and accepted the Court’s contentious jurisdiction are Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Trinidad and Tobago, Uruguay, and Venezuela. See <http://www.oas.org/juridico/english/Sigs/b–32.html>.

38 UN Comm’n on Human Rights Res. 2004/53 (Apr. 20, 2004), UN Doc. E/CN.4/RES/2004/53, available at <http://www.ohchr.org/english/bodies/chr/sessions/60/documents.htm>.

39 It was presumably for this reason that Mexico sought an advisory opinion from the Court.

40 For a detailed discussion of these workplace policies, see Cleveland, Sarah, Lyon, Beth, & Smith, Rebecca, Inter–American Court of Human Rights Amicus Curiae Brief The United States Violates International IMW When Labor Law Remedies Are Restricted Based on Workers’Migrant Status, 1 Seattle J. Soc.Just. 795, 812–22 (2003)Google Scholar.

41 Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (“an Act of Congress ought never to be construed to violate the law of nations if any other possible construction remains”).

42 See supra note 3 and accompanying text.

43 In March 2005, the commission received information regarding the rights of migrant workers in the United States, including both the impact of the Hoffman decision on the labor rights of undocumented migrant workers and the working conditions of Florida’s migrant workers. See Inter–Am. C.H.R. Press Release 8/05, at <http://www.iachr.org/Comunicados/English/2005/8.05.htm>.

44 28 U.S.C. §1350.