Juridical Condition and Rights of the Undocumented Migrants

Inter-Am Ct HR OC-18/03 (2003)

A case brought by Mexico before the court to determine the rights of undocumented workers; thought to be because of a particular concern about undocumented Mexicans in the US, where in Hoffmann Plastic Compounds v NLRB the Supreme Court had ruled undocumented workers were not entitled to compensation for wrongful termination under a statutory scheme (S Cleveland, Legal Status and Rights of Undocumented Workers (2005) 99 American Journal of International Law 460) (US, Canada do not accept the jurisdiction of the IACtHR to binding adjudication)
*Paragraph numbers restart in each opinion

The Advisory Opinion

(Unanimous opinion of the court see p 113)

Human Rights
[70] [81] The relevant provisions in the American Convention on Human Rights are largely the same as Arts 2, 26 ICCPR, and are also reflected in Art 2(1) UDHR [70] [71] The court begins with a strong assertion: Human rights must be respected and guaranteed by all States. All persons have attributes inherent to their human dignity that may not be harmed; these attributes make them possessors of fundamental rights that may not be disregarded and which are, consequently, superior to the power of the State, whatever its political structure. [73] A customary norm of international law is that a State ratifying a human rights treaty must ensure compliance with it in domestic law [77], citing Five Pensioners case in IACtHR; implementing human rights obligations does not involve merely respecting those rights, but also ensuring enjoyment of them [79], citing UN Committee on HR (a sub-committee of the UN Human Rights Council) General Comment 3

The Principle of Equality

[82] [110] There are two kinds of differences, distinctions and discriminations, used here to refer to lawful and unlawful differentiation respectively [84] Following the ECtHR (Willis v UK etc), discrimination occurs when differentiation has no objective and reasonable justification usually differentiation is justified when it is an instrument for the protection of the weak [89] The principle of equality before the law and non-discrimination is intrinsic to every act of the State in relation to human rights; this principle can be considered peremptory under international law, regardless of whether a state has signed a relevant treaty or not this principle is part of jus cogens because the whole legal structure of national and international public order rests on it and it is a fundamental principle that permeates all laws. Nowadays, no legal act that is in conflict with this fundamental principle is acceptable [100] [101] Generally speaking laws violating this principle give rise to international state responsibility [103], and particularly so when discrimination concerns the enjoyment of human rights [106] An effective judicial (or other) remedy is necessary in such a case [108], citing Five Pensioners This general obligation to respect and ensure the exercise of rights is erga omnes: therefore states must respect it irrespective of the migratory status of the persons in question [109]
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 This obligation encompasses all the rights in the ICCPR

Migrants Rights
[111] [127] Citing with approval UN GA, Resolution A/RES/54/166 on Protection of migrants: the need for all States to protect fully the universally recognized human rights of migrants regardless of their legal status, and to provide humane treatment, particularly with regard to assistance and protection [114] Owing to the jus cogens, erga omnes obligation, States can only treat documented migrants, undocumented migrants, and nationals differently provided that this differential treatment is reasonable, objective, proportionate and does not harm human rights. [119] Note: the court also cites seemingly with approval the African Commission on Human and Peoples Rights which holds that taking legal action against illegal immigrants and deporting them to their states of origin is legal if done in accordance with law Also, much of the explanation following this is, understandably, in relation to the right to due process etc. but there is no reason to think that this limits the broader range of rights covered by the analysis above; NB: the migratory status of a person can never be a justification for depriving him of the enjoyment and exercise of his human rights, including those related to employment [134]

Rights of Undocumented Workers

[128] [160] However, the specific rights relating to employment are not obligations inherently owed by the State: it and its people can refrain from employing irregular migrants; if and when irregular migrants are employed, however, then they immediately come into possession of basic rights relating to employment equal to those of other workers [135] [136] Issue: This makes sense in light of problems suffered by undocumented migrants who enter employment, but does it imply that other rights also do not arise automatically? No, this is true only because employment rights in general only arise when people find jobs; no one is entitled to a job as a human right

The IACtHR has previously ruled that protecting detainees from deaths and death treats from others (including other prisoners) is an obligation imposed upon governments by human rights [142] Relevance: This does not speak directly to Alfurnas case against Rutasia, but finding deaths in detention (which happened in Woeroma in Rutasia) to be a human rights violation is logically prior to the state having a human rights obligation to stop others from killing detainees (provided that death itself is a violation, not only killing) Citing the UN Committee on HR with approval, Art 9 ICCPR imposes on states the obligation to take adequate steps to protect an individual threatened with death; an interpretation of this article that authorized States parties to ignore threats against the life of persons subject to their jurisdiction, even though they have not been detained or arrested by State agents, would deprive the guarantees established in the Covenant of any effectiveness. [144] Relevance: It could therefore be argued that the threat of potential violations committed by Saydee requires Rutasia to take steps to protect the migrants so long as they are under Rutasias jurisdiction, and especially because they have been detained When there are multiple instruments governing workers rights, the one most favourable to the individual, whether domestic or international in nature, should prevail [156]

States Policy Obligations

[161] [172] According to Art 27 VCLT, states which ratify an international treaty must commit in good faith to respect the rights recognised therein, including by adapting their domestic law [165] [166] This means migratory policies and their goals should respect and guarantee human rights; any distinctions must be objective, proportionate, and reasonable [168] States may not subordinate or condition the observance of the principle of equality to achieving the goals of its public policies, whatever they may be; to do otherwise is inconsistent with international human rights instruments [172] Section X (Opinion), at p 112 of the Advisory Opinion, provides a quick summary of all the courts conclusions.

Concurring Opinion: Judge A. A. Canado Trindade

(then President of the IACtHR; judge on the ICJ since February 2009) The principle of non-refoulement is applicable even if those being expelled have been legally admitted in the receiving state (i.e. Saydee), regardless of whether expulsion is mass or individual; states should also end mass expulsions [21], citing with approval the ILAs 1986 Declaration of Principles of International Law on Mass Expulsion Human rights transcend the rights of citizenship granted by the state. If it were require[d] of certain individuals to capitulate before the social whole, to deprive themselves of the rights which are inherent to them (as a result, e.g., of their political or migratory status), to entrust their destiny entirely to the artificial social whole, in such circumstances the very notion of common good would completely disappear. [31], citing J Maritain, The Person and the Common Good (1947) NB: If the description of Maritains philosophy in http://plato.stanford.edu/entries/maritain is correct, Trindade seems to have significantly mischaracterised his views Relevance? If Trindade is right, Rutasia is not entitled to carry out the policy it does We might be witnessing the formation of a true human right to humanitarian assistance [38] The fundamental principles of international law form the substratum of the legal order, and human beings, regardless of citizenship or other circumstance, are permanently entitled to rights [55] This can be seen in Art 1 UDHR: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Art 26 ICCPR (principle of non-discrimination) provides for an autonomous right, whose application is not limited to rights stipulated in the Covenant [61], citing UN Committee on HR General Comment 18 Furthermore, when clauses of non-discrimination in international instruments include a list of illegitimate bases, they really aim at eliminating a whole discriminatory social structure, merely having in mind the distinct components [62] The domain of peremptory norms of international law and jus cogens must inherently extend beyond conventional norms like the law of treaties to every and any juridical act [68] The erga omnes prohibitions mentioned in the dicta in Barcelona Traction are not exhaustive; jus cogens is not a closed category and others (such as those in this case) have been added to it [75] *Martens clause: in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience. (preamble to the 1907 Hague Conventions)
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 Mexico argued before the court that this could be an element of legal interpretation supporting the migrants; possible to argue that this is a source of general international law itself [29]

Concurring Opinion: Judge Sergio Garca Ramrez

(former Attorney-General of Mexico, President of the IACtHR 2004 2009) The prohibition to discriminate applies to all rights, not simply those considered fundamental [20] This case rejects the opinion suggesting there should be restrictions and reductions in the rights of the individual when he crosses the borders of his own country and moves abroad, as if this journey eroded his human condition and took away a migrants dignity and, therefore, his rights and freedoms. [23] By this view, it is unacceptable to deprive an undocumented person of freedom of expression, or to punish non-compliance with migratory provisions by measures relating to other areas unrelated to the migratory offence [25] Issue: What kind of punishments are unrelated to the migratory offence detention? It is one of a states functions to see that its policy does not enter into conflict with any human rights, but instead preserves them according to their legitimate objectives [41]

Concurring Opinion: Judge Hernn Salgado Pesantes

As the Advisory Opinion states, this difference in treatment [of undocumented migrants] is neither justified, necessary nor proportionate, and its effects are not reasonable; it is at odds with the States main function, which is to respect and ensure the rights of every individual who, for laborrelated reasons, and with or without documents, is subject to its jurisdiction. [14] Issue: labour-related reasons? Surely this is too narrow

Concurring Opinion: Judge Alirio Abreu Burelli

This ruling states international obligations of states in legal but also humanistic terms, and although grounded on jus cogens, also contains an implicit call for social justice and human solidarity [III] ???