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 Editorials | Issues | December 2007 
A Double Standard on Migrants?
 Peter Costantini - IPS
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 |  | U.S. labour law in recent years has been marked by non-enforcement of minimum standards in many immigrant heavy sectors, and accident and fatality rates for immigrant workers have reached a tragic and shameful level.
- Rebecca Smith |  | |
Seattle, Washington - Just beyond the horizon of the immigration reform controversy in the United States, a storm is brewing over exactly what rights are guaranteed to non-citizens under international human rights agreements.
The historic foundation of international human rights is the Universal Declaration of Human Rights, adopted in 1948 shortly after the founding of the United Nations. It served as the basis for two U.N. covenants - the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights - signed by the world body's members, including the United States.
These rights apply to all people, not just citizens. As Article 6 of the Universal Declaration states, "Everyone has the right to recognition everywhere as a person before the law." Although these covenants are not binding in U.S. courts, all U.N. member nations are committed to respecting their principles.
The issue of U.S. compliance with international norms on migrants' rights was recently spotlighted by an investigation by a U.N. special envoy.
Last April and May, the Special Rapporteur on the Human Rights of Migrants, Jorge A. Bustamante, traveled around the U.S. on a fact-finding mission for the U.N. Human Rights Council. He met with immigrants and officials in several states and visited one detention facility for migrants. But at two other detention centres, he said, scheduled visits were canceled without explanation.
Bustamante, a professor at universities in the U.S. and Mexico, investigated allegations of arbitrary detention, separation of families, substandard conditions of detention, procedural violations in criminal and administrative law proceedings, racial and ethnic discrimination, arbitrary and collective expulsions, and violations of children's and women's rights.
He highlighted the lack of a centralised system of information on arrests by immigration officials and locations of detainees, which can impose hardships on their families. Among other concerns cited were the mandatory detention of individuals who are not a flight risk or danger, the temporary detention of children in adult facilities, and the lack of right to appointed legal counsel in removal procedures.
The special rapporteur encouraged the U.S. government to ensure that its laws and law enforcement are consistent with its international treaty obligations to protect migrants. He also called on Washington to ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.
This treaty was adopted by the U.N. General Assembly in 1990, and entered into force in 2003 after 20 states had ratified it. So far, however, it has not been ratified by the U.S. or any other migrant-receiving country.
In the Western Hemisphere, the American Convention on Human Rights has been ratified by U.S. and most other countries. It is enforced by the Inter-American Court of Human Rights (IACHR), part of the Organisation of American States.
In 2003, Mexico, joined by several other countries, requested an advisory opinion from the IACHR in response to a 2002 decision by the U.S. Supreme Court in Hoffman Plastic Compounds, Inc. v. National Labour Relations Board.
The Supreme Court had held that an undocumented worker illegally fired from his job for union organising was not entitled to compensation for lost wages. This decision left immigrant workers vulnerable to retaliation by employers when they try to assert their labour rights, and has been cited by employers as a precedent in over 25 other cases.
In its opinion, the IACHR asserted that "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." Regardless of immigration status, the ruling said, migrant workers are entitled to the same labour rights as citizens, including full compensation, freedom from discrimination, health and safety protections, and the freedom to organise and join a trade union and bargain collectively.
In November 2006, a new case was filed against the U.S. in the IACHR for violations of the human rights of immigrants. The individual petitioners, a group of mostly anonymous immigrant workers claiming injury by U.S. violations, were joined by U.S. trade unions and NGOs.
"U.S. labour law in recent years has been marked by non-enforcement of minimum standards in many immigrant heavy sectors, and accident and fatality rates for immigrant workers have reached a tragic and shameful level," according to Rebecca Smith of the National Employment Law Project, counsel for the petitioners. "With the failures of our internal governmental protection systems, such as minimum wage laws and union-organising protections, workers have had to call on a higher authority."
Within the U.S., the Constitution guarantees many rights to all people present in the country, not merely citizens or legal immigrants. The Fourth Amendment protects everyone against unreasonable search and seizure, and the Fourteenth Amendment mandates due process and equal protection before the law for all.
But in matters of immigration such as admission and removal, immigrants have only limited procedural rights under U.S. law. And when these limitations conflict with human rights in detention, hearings and deportations, the human rights are frequently elbowed aside.
Beyond laws, the imperative to welcome outsiders is deeply embedded in Judeo-Christian tradition, which predominates in the U.S. and the Western Hemisphere.
The Old Testament book of Leviticus says: "But the stranger that dwelleth with you shall be unto you as one born among you, and thou shalt love him as thyself; for ye were strangers in the land of Egypt". In the Gospel According to St. Matthew, Jesus Christ exhorted his followers to feed the hungry, care for the sick, and welcome the stranger. |
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