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Refugees and Human Rights, Vol. 10, pp. 551-582, 2005.

Abstract

Governments cannot ignore international human rights standards for unauthorized migrant workers forever. This chapter presents a call for comparative work on the issue of the legal regimes affecting unauthorized immigrant workers in order to bring governments into greater awareness and compliance with their obligations to unauthorized immigrant workers.

Global illegal migration by laborers seeking economic opportunities is expanding, resulting in an increasing number of migrants in every country who are working in violation of immigration laws. Unauthorized immigrant workers are numerous enough to form a recognizable group in every major world economy, because most receiving countries have immigration laws that make the existence of such a group inevitable. On the one hand, these countries welcome and avail themselves of the physical labor of foreigners. But on the other hand, their laws restrict the number of legally issued visas and other immigration possibilities available for blue-collar workers to migrate legally. Therefore, only an insignificant percentage of the actual number of workers demanded by receiving-country employers are afforded a legal means to enter the country and take on the jobs they seek.

In recent years, a spate of new international and regional legal developments has established and extended the human rights of these unauthorized migrant workers. The international community, however, has not embraced the standards on unauthorized migrant workers with enthusiasm. For example, ratification of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families remains very low.

This chapter first posits that comparative research could play an important role in developing and improving ratification of norms for the protection of unauthorized immigrant workers. The weak status of international migrant human rights treaties such as the Convention demonstrates two intertwined phenomena: the international human rights community’s awareness of the particularly vulnerable condition of unauthorized migrant workers, and most national governments’ preference to avoid granting rights to this population. In this situation, the development, publication, and analysis of information on national treatment of unauthorized immigrant workers is urgently needed to support the new standards. Awareness about national policies will further the international norms by: (1) identifying the best practices for replicating and building customary international law; (2) identifying violative practices and situations where new standards would most profitably be disseminated; and (3) placing national laws about unauthorized workers into a human rights framework to create new paradigms and approaches to these laws.

Secondly, the chapter argues that comparative research relating to this population is lacking. The extensive literature on comparative labor and employment rights rarely touches on this population. Immigration laws are also subjects of legal surveys and comparative work that, again, generally do not include information specifically relevant to unauthorized migrant workers and their rights qua workers. These efforts should be expanded or supplemented by work that includes issues of particular importance to unauthorized workers and to the receiving and sending governments whose policies affect them.

Finally, the chapter proposes principles that should underlie national studies and research. To facilitate comparative projects, the chapter proposes considerations for constructing effective comparisons of this complex policy area, arguing for three underlying principles: (1) as unauthorized immigrants are affected by a range of legal regimes, neither immigration nor labor law alone can address their human rights situation, but all relevant regimes must be addressed, including the special problem of enforcement and providing remedies to a shadow labor force; (2) national studies should not ignore instrumental arguments, for example the positive correlation between enforcement and security issues that preoccupy the polity, but should instead make clear the enforcement effect of providing rights to the workers through dampening of employer demand; and (3) comparative research must be structured to support and further new international standards relating to unauthorized immigrant workers.

Disciplines

Civil Rights and Discrimination | Immigration Law | International Law | Labor and Employment Law

Date of this Version

April 2006

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