INTER-AMERICAN COURT OF HUMAN RIGHTS

ADVISORY OPINION OC-18/03
OF SEPTEMBER 17, 2003,
REQUESTED BY THE UNITED MEXICAN STATES

LEGAL STATUS AND RIGHTS
OF UNDOCUMENTED MIGRANTS

Those present*:

Antônio A. Cançado Trindade, President;
Sergio García Ramírez, Vice President;
Hernán Salgado Pesantes, Judge;
Oliver Jackman, Judge;
Alirio Abreu Burelli, Judge, and
Carlos Vicente de Roux Rengifo, Judge,

also present,

Manuel E. Ventura Robles, Secretary, and
Pablo Saavedra Alessandri, Deputy Secretary.

THE COURT

composed as above,

renders the following Advisory Opinion:

I PRESENTATION OF THE REQUEST

1. On May 10, 2002, the State of the United Mexican States (hereinafter “Mexico” or “the requesting State”), based on Article 64(1) of the American Convention on Human Rights (hereinafter “the American Convention”, “the Convention” or “the Pact of San José”), submitted to the Inter-American Court of Human Rights (hereinafter “the Inter-American Court” or “the Court”) a request for an advisory opinion (hereinafter also “the request”) on the “[...] deprivation of the enjoyment and exercise of certain labor rights [of migrant workers,] and its compatibility with the obligation of the American States to ensure the principles of legal equality, non-discrimination and the equal and effective protection of the law embodied in international instruments for the protection of human rights; and also with the subordination or conditioning of the observance of the obligations imposed by international human rights law, including those of an erga omnes nature, with a view to attaining certain domestic policy objectives of an American State.” In addition, the request dealt with “the meaning that the principles of legal equality, non-discrimination and the equal and effective protection of the law have come to signify in the context of the progressive development of international human rights law and its codification.”

2. Likewise, Mexico stated the considerations that gave rise to the request and, among these, it indicated that:

Migrant workers, as all other persons, must be ensured the enjoyment and exercise of human rights in the States where they reside. However, their vulnerability makes them an easy target for violations of their human rights, based, above all, on criteria of discrimination and, consequently, places them in a situation of inequality before the law as regards the effective enjoyment and exercise of these rights

[…]

In this context, the Government of Mexico is profoundly concerned by the incompatibility with the OAS human rights system of the interpretations, practices and enactment of laws by some States in the region. The Government of Mexico considers that such interpretations, practices and laws imply the negation of labor rights based on discriminatory criteria derived from the migratory status of the undocumented workers, among other matters. This could encourage employers to use those laws or interpretations to justify a progressive loss of other labor rights; for example: payment of overtime, seniority, outstanding wages and maternity leave, thus abusing the vulnerable status of undocumented migrant workers. In this context, the violations of the international instruments that protect the human rights of migrant workers in the region are a real threat to the exercise of the rights protected by such instruments.

3. Mexico requested the Court to interpret the following norms: Articles 3(1) and 17 of the Charter of the Organization of American States (hereinafter “the OAS”); Article II (Right to Equality before the Law) of the American Declaration on the Rights and Duties of Man (hereinafter “the American Declaration”); Articles 1(1) (Obligation to Respect Rights), 2 (Domestic Legal Effects), and 24 (Equality before the Law) of the American Convention; Articles 1, 2(1) and 7 of the Universal Declaration on Human Rights (hereinafter “the Universal Declaration”), and Articles 2(1), 2(2), 5(2) and 26 of the International Covenant on Civil and Political Rights.

4. Based on the preceding provisions, Mexico requested the Court’s opinion on the following issues:

In the context of the principle of equality before the law embodied in Article II of the American Declaration, Article 24 of the American Convention, Article 7 of the Universal Declaration and Article 26 of the [International] Covenant [of Civil and Political Rights ...]:

1) Can an American State establish in its labor legislation a distinct treatment from that accorded legal residents or citizens that prejudices undocumented migrant workers in the enjoyment of their labor rights, so that the migratory status of the workers impedes per se the enjoyment of such rights?

2.1) Should Article 2, paragraph 1, of the Universal Declaration, Article II of the American Declaration, Articles 2 and 26 of the [International] Covenant [of Civil and Political Rights], and Articles 1 and 24 of the American Convention be interpreted in the sense that an individual’s legal residence in the territory of an American State is a necessary condition for that State to respect and ensure the rights and freedoms recognized in these provisions to those persons subject to its jurisdiction?

2.2) In the light of the provisions cited in the preceding question, can it be considered that the denial of one or more labor right, based on the undocumented status of a migrant worker, is compatible with the obligations of an American State to ensure non-discrimination and the equal, effective protection of the law imposed by the above-mentioned provisions?

Based on Article 2, paragraphs 1 and 2, and Article 5, paragraph 2, of the International Covenant on Civil and Political Rights,

3) What would be the validity of an interpretation by any American State which, in any way, subordinates or conditions the observance of fundamental human rights, including the right to equality before the law and to the equal and effective protection of the law without discrimination, to achieving migration policy goals contained in its laws, notwithstanding the ranking that domestic law attributes to such laws in relation to the international obligations arising from the International Covenant on Civil and Political Rights and other obligations of international human rights law that have an erga omnes character?

In view of the progressive development of international human rights law and its codification, particularly through the provisions invoked in the instruments mentioned in this request,

4) What is the nature today of the principle of non-discrimination and the right to equal and effective protection of the law in the hierarchy of norms established by general international law and, in this context, can they be considered to be the expression of norms of ius cogens? If the answer to the second question is affirmative, what are the legal effects for the OAS Member States, individually and collectively, in the context of the general obligation to respect and ensure, pursuant to Article 2, paragraph 1, of the [International] Covenant [on Civil and Political Rights], compliance with the human rights referred to in Articles 3 (l) and 17 of the OAS Charter?

5. Juan Manuel Gómez-Robledo Verduzco was appointed as the Agent and the Ambassador of Mexico to Costa Rica, Carlos Pujalte Piñeiro, as the Deputy Agent.

II PROCEEDING BEFORE THE COURT

6. In notes of July 10, 2002, the Secretariat of the Court (hereinafter “the Secretariat”), in compliance with the provisions of Article 62(1) of the Rules of Procedure of the Court (hereinafter “the Rules of Procedure”), transmitted the request for an advisory opinion to all the member States, to the Secretary General of the OAS, to the President of the OAS Permanent Council and to the Inter-American Commission on Human Rights. It also advised them of the period established by the President of the Court (hereinafter “the President”), in consultation with the other judges of the Court, for submission of written comments or other relevant documents with regard to this request.

7. On November 12, 2002, Mexico presented a communication, with which it forwarded a copy of a communication from its Ministry of Foreign Affairs providing information about an opinion of the International Labour Organization (ILO) related to labor rights for migrant workers.

8. On November 14, 2002, the State of Honduras presented its written comments. Some pages were illegible. On November 1, 2002, the complete version of the brief with comments was received.

9. On November 15, 2002, Mexico presented a communication in which it forwarded information that was complementary to the request, and included the English version of a formal opinion that it had requested from the International Labor Office of the International Labor Organization (ILO) and which, according to Mexico, “was of particular relevance for the […] request procedure.”

10. On November 26, 2002, the State of Nicaragua presented its written comments.

11. On November 27, 2002, the Legal Aid Clinic of the College of Jurisprudence of the Universidad San Francisco de Quito presented an amicus curiae brief.

12. On December 3, 2002, Mexico presented a communication, with which it forwarded the Spanish version of the formal opinion that it had requested from the International Labor Office of the International Labor Organization (ILO) (supra para. 9).

13. On December 12, 2002, the Delgado Law Firm presented an amicus curiae brief.

14. On January 8, 2003, Liliana Ivonne González Morales, Gail Aguilar Castañón, Karla Micheel Salas Ramírez and Itzel Magali Pérez Zagal, students of the Faculty of Law of the Universidad Nacional Autónoma de Mexico (UNAM), presented an amici curiae brief by e-mail. The original of this communication was submitted on January 10, 2003.

15. On January 13, 2003, the States of El Salvador and Canada presented their written comments.

16. On January 13, 2003, the Inter-American Commission on Human Rights presented its written comments.

17. On January 13, 2003, the United States of America presented a note in which it informed the Court that it would not present comments on the request for an advisory opinion.

18. On January 13, 2003, the Harvard Immigration and Refugee Clinic of the Greater Boston Legal Services and the Harvard Law School, the Working Group on Human Rights in the Americas of the Harvard and Boston College Law Schools, and the Global Justice Center presented an amici curiae brief.

19. On January 16, 2003, the President issued an Order in which he convened “a public hearing on the request for Advisory Opinion OC-18, on February 24, 2002, at 9 a.m.” so that “the member States and the Inter-American Commission on Human Rights [could] present their oral arguments.”

20. On January 17, 2003, the State of Costa Rica presented its written comments.

21. On January 29, 2003, the Secretariat, on the instructions of the President, and in communication CDH-S/067, invited Gabriela Rodríguez, United Nations Special Rapporteur on the Human Rights of Migrants to attend the public hearing convened for February 24, 2003 (supra para. 19), as an observer.

22. On February 3, 2003, the Secretariat transmitted a copy of the complementary information to its request for an advisory opinion forwarded by Mexico (supra paras. 9 and 12), the written comments submitted by the States of Honduras, Nicaragua, El Salvador, Canada and Costa Rica (supra paras. 8, 10, 15 and 20), and by the Inter-American Commission (supra para. 16), to all the foregoing.

23. On February 6, 2003, Mario G. Obledo, President of the National Coalition of Hispanic Organizations, presented a brief supporting the request for an advisory opinion.

24. On February 6, 2003, Thomas A. Brill of the Law Office of Sayre & Chavez, presented an amicus curiae brief.

25. On February 6, 2003, Javier Juárez of the Law Office of Sayre & Chavez, presented an amicus curiae brief.

26. On February 7, 2003, Mexico presented a brief in which it substituted the Deputy Agent, Ambassador Carlos Pujalte Piñeiro, by Ricardo García Cervantes, actual Ambassador of Mexico to Costa Rica (supra para. 5).

27. On February 10, 2003, Beth Lyon forwarded, via e-mail, an amici curiae brief presented by the Labor, Civil Rights and Immigrants’ Rights Organizations in the United States.

28. On February 13, 2003, the Harvard Immigration and Refugee Clinic of the Greater Boston Legal Services and the Harvard Law School, the Working Group on Human Rights in the Americas of the Harvard and Boston College Law Schools and the Global Justice Center forwarded the final, corrected version of the amici curiae brief that they had presented previously (supra para. 18).

29. On February 13, 2003, Rebecca Smith forwarded another copy of the amici curiae brief presented by the Labor, Civil Rights and Immigrants’ Rights Organizations in the United States (supra para. 27).

30. On February 21, 2003, the Academy of Human Rights and International Humanitarian Law of the American University, Washington College of Law, and the Human Rights Program of the Universidad Iberoamericana of Mexico submitted an amici curiae brief.

31. On February 21, 2003, the Center for International Human Rights of the School of Law of Northwestern University submitted an amicus curiae brief. The original of this brief was presented on February 24, 2003.

32. On February 24, 2003, a public hearing was held at the seat of the Court, in which the oral arguments of the participating States and the Inter-American Commission on Human Rights were heard.

There appeared before the Court:

for the United Mexican States:
-Juan Manuel Gómez Robledo, Agent;
-Ricardo García Cervantes, Deputy Agent and Ambassador of Mexico to Costa Rica;
-Víctor Manuel Uribe Aviña, Adviser;
-Salvador Tinajero Esquivel, Adviser, Director of Inter-institutional Coordination and NGOs of the Human Rights Directorate of the Ministry of Foreign Affairs, and
-María Isabel Garza Hurtado, Adviser;

for Honduras: -Álvaro Agüero Lacayo, Ambassador of Honduras to Costa Rica, and
-Argentina Wellermann Ugarte, First Secretary of the Embassy of Honduras in Costa Rica;

for Nicaragua: -Mauricio Díaz Dávila, Ambassador of Nicaragua to Costa Rica;

for El Salvador: -Hugo Roberto Carrillo, Ambassador of El Salvador to Costa Rica, and
-José Roberto Mejía Trabanino, Coordinator of Global Issues of the Ministry of Foreign Affairs of El Salvador;

for Costa Rica: -Arnoldo Brenes Castro, Adviser to the Minister of Foreign Affairs;
-Adriana Murillo Ruin, Coordinator of the Human Rights Division of the Foreign Policy Directorate;
-Norman Lizano Ortiz, Official of the Human Rights Division of the Foreign Policy Directorate;
-Jhonny Marín, Head of the Legal Department of the Directorate of Migration and Aliens, and
-Marcela Gurdián, Official of the Legal Department of the Directorate of Migration and Aliens; and

for the Inter-American Commission
on Human Rights: -Juan Méndez, Commissioner, and
-Helena Olea, Assistant.

Also present as Observers:

for the Oriental Republic of
Uruguay: -Jorge María Carvalho, Ambassador of Uruguay to Costa Rica;

for Paraguay: -Mario Sandoval, Minister, Chargé d’Affaires of the Embassy of Paraguay in Costa Rica;

for the Dominican Republic: -Ramón Quiñones, Ambassador, Permanent Representative of the Dominican Republic to the OAS;
-Anabella De Castro, Minister Counselor, Head of the Human Rights Section of the Ministry of Foreign Affairs, and
-José Marcos Iglesias Iñigo, Representative of the State of the Dominican Republic to the Inter-American Court of Human Rights;

for Brazil: -Minister Nilmário Miranda, Secretary for Human Rights of Brazil;
-María De Luján Caputo Winkler, Chargé d’Affaires of the Embassy of Brazil in Costa Rica, and
-Gisele Rodríguez Guzmán, Official of the Embassy of Brazil in Costa Rica;

for Panama: -Virginia I. Burgoa, Ambassador of Panama to Costa Rica;
-Luis E. Martínez-Cruz, Chargé d’Affaires of the Embassy of Panama in Costa Rica, and
-Rafael Carvajal Arcia, Director of the Legal Adviser’s Office of the Ministry of Labor and Employment;

for Argentina: -Juan José Arcuri, Ambassador of Argentina to Costa Rica;

for Peru: -Fernando Rojas S., Ambassador of Peru to Costa Rica, and
-Walter Linares Arenaza, First Secretary of the Embassy of Peru in Costa Rica; and

for the United Nations: -Gabriela Rodríguez, Special Rapporteur on the Human Rights of Migrants.
33. On March 5, 2003, Mexico presented a brief with which it forwarded a copy of the “revised text of the oral argument made by the Agent” in the public hearing held on February 24, 2003 (supra para. 32).

34. On March 20, 2003, Mexico forwarded a copy of the press communiqué issued by its Ministry of Foreign Affairs on March 11, 2003.

35. On March 28, 2003, Mexico presented a brief in which it remitted the answers to the questions formulated by Judge Cançado Trindade and Judge García Ramírez during the public hearing (supra para. 32).

36. On April 7, 2003, the President issued an Order in which he convened “a public hearing on the request for Advisory Opinion OC-18, at 10 a.m. on June 4, 2003”, so that the persons and organizations that had forwarded amici curiae briefs could present their respective oral arguments. The Order also indicated that if any person or organization that had not presented an amicus curiae brief wished to take part in the public hearing, they could do so, after they had been accredited to the Court.

37. On May 15, 2003, the Center for Justice and International Law (CEJIL) presented an amicus curiae brief.

38. On May 16, 2003, the Center for Legal and Social Studies (CELS), the Ecumenical Service for the Support and Orientation of Refugees and Immigrants (CAREF) and the Legal Clinic for the Rights of Immigrants and Refugees of the School of Law of the Universidad de Buenos Aires, submitted an amici curiae brief by e-mail. The original of this brief was presented on May 28, 2003.

39. On June 4, 2003, a public hearing was held in the Conference Hall of the former Chamber of Deputies, Ministry of Foreign Affairs, in Santiago, Chile, during which the oral arguments presented as amici curiae by various individuals, universities, institutions and non-governmental organizations were presented.

There appeared before the Court:

for the Faculty of Law of the - Itzel Magali Pérez Zagal, Student
Universidad Nacional - Karla Micheel Salas Ramírez, Student
Autónoma de México (UNAM): - Gail Aguilar Castañón, Student and
- Liliana Ivonne González Morales, Student

for the Harvard Immigration and Refugee - James Louis Cavallaro, Associate Director, Human
Clinic of Greater Boston Legal Services and Rights Program, Harvard Law School
the Harvard Law School, the Working - Andressa Caldas, Attorney and Legal Director,
Group on Human Rights in the Americas Global Justice Center, Rio de Janeiro, Brazil and
of Harvard and Boston College Law Schools - David Flechner, Representative, Harvard Law
and the Global Justice Center: Student Advocates for Human Rights

for the Law Office of Sayre & Chavez: - Thomas A. Brill, Attorney at Law

for the Labor, Civil Rights and - Beth Lyon, Assistant Professor of Law, Villanova
Immigrants´ Rights Organizations University School of Law, and
in the United States of America: - Rebecca Smith, Attorney, National Employment
Law Project

for the Center for International Human - Douglas S. Cassel, Director, and
Rights of Northwestern University, - Eric Johnson
School of Law:

for the Juridical Research Institute of the - Jorge A. Bustamante, Researcher;
Universidad Nacional Autónoma de México:

for the Center for Justice and International - Francisco Cox, Lawyer;
Law (CEJIL):

for the Center for Legal and Social Studies - Pablo Ceriani Cernadas, Lawyer, CELS, and (CELS), the Ecumenical Service for the Coordinator of the Legal Clinic;
Support and Orientation of Immigrants and Refugees (CAREF) and the Legal Clinic for the Rights of Immigrants and Refugees of the School of Law of the Universidad de Buenos Aires:

for the Office of the United Nations High -Juan Carlos Murillo, Training Officer, Regional Legal
Commissioner for Refugees (UNHCR): Unit; and

for the Central American Council of -Juan Antonio Tejada Espino, President, Central
Ombudsmen: American Council and Ombudsman of the
Republic of Panama.

Also present as Observers:

for the United Mexican States: - Ricardo Valero, Ambassador of Mexico in Chile and
- Alejandro Souza, Official, General Coordination of
Legal Affairs of the Ministry of Foreign Affairs
Of Mexico; and

for the Inter-American Commission on - Helena Olea, Lawyer.
Human Rights:

40. On June 4, 2003, during the public hearing held in Santiago, Chile, the Central American Council of Ombudsmen presented and amicus curiae brief.

41. On June 24, 2003, Jorge A. Bustamante remitted, by e-mail, an amicus curiae brief presented by the Juridical Research Institute of the Universidad Nacional Autónoma de México (UNAM). The original of this brief was presented on July 3, 2003.

42. On July 3, 2003, Thomas A. Brill, of the Law Office of Sayre & Chavez, presented his final written arguments.

43. On July 8, 2003, Beth Lyon forwarded, by e-mail, the final written arguments of the Labor, Civil Rights and Immigrants’ Rights Organizations in the United States. The original of this brief was received on August 7, 2003.

44. On July 11, 2003, Liliana Ivonne González Morales, Gail Aguilar Castañón, Karla Micheel Salas Ramírez and Itzel Magali Pérez Zagal, Students of the Faculty of Law of the Universidad Nacional Autónoma de México (UNAM), presented their brief with final arguments by e-mail. The original of this brief was presented on July 18, 2003.

45. On July 11, 2003, the Center for International Human Rights of the School of Law of Northwestern University, presented its final written arguments, by e-mail. The original of this brief was presented on July 18, 2003.

46. On July 30, 2003, the Center for Legal and Social Studies (CELS), the Ecumenical Service for the Support and Orientation of Immigrants and Refugees (CAREF) and the Legal Clinic for the Rights of Immigrants and Refugees of the School of Law of the Universidad de Buenos Aires presented their final written arguments.

47. The Court will now summarize the written and oral comments of the requesting State, the participating States and the Inter-American Commission, and also the briefs and oral arguments presented by different individuals, universities, institutions and non-governmental organizations as amici curiae:

The requesting State: Regarding the admissibility of the request, Mexico stated in its brief that:
By clarifying the scope of the State’s international obligations with regard to the protection of the labor rights of undocumented migrant workers, irrespective of their nationality, the opinion of the Court would be of considerable relevance for effective compliance with such obligations by the authorities of States that receive those migrants.

The request submitted by Mexico does not expect the Court to rule in the abstract, “but to consider concrete situations in which it is called on to examine the acts of the organs of any American State, inasmuch as the implementation of such acts may lead to the violation of some of the rights protected in the treaties and instruments mentioned in the […] request.” Nor does it expect the Court to interpret the domestic law of any State.
In addition to the considerations that gave rise to the request and that have been described above (supra para. 2), the requesting State indicated that:
The protection of the human rights of migrant workers is also an issue of particular interest to Mexico, because approximately 5,998,500 (five million nine hundred and ninety-eight thousand five hundred) Mexican workers reside outside national territory. Of these, it is estimated that 2,490,000 (two million four hundred and ninety thousand) are undocumented migrant workers who, lacking regular migratory status, “become a natural target for exploitation, as individuals and as workers, owing to their particularly vulnerable situation.”

In less than five months (from January 1 to May 7, 2002), the Mexican Government had to intervene, through its consular representatives, in approximately 383 cases to defend the human rights of Mexican migrant workers, owing to issues such as discrimination in employment-related matters, unpaid wages, and compensation for occupational illnesses and accidents.

The efforts made by Mexico and other States in the region to protect the human rights of migrant workers have been unable to avoid a resurgence of discriminatory legislation and practices against aliens seeking employment in a foreign country, or the regulation of the labor market based on discriminatory criteria, accompanied by xenophobia in the name of national security, nationalism or national preference.

With regard to the merits of the request, Mexico indicated in its brief:

Regarding the first question of the request (supra para. 4):
In the context of the principle of equality before the law embodied in Article II of the American Declaration, Article 24 of the American Convention, Article 7 of the Universal Declaration and Article 26 of the Covenant, any measures that promotes a harmfully different treatment for persons or groups of persons who are in the territory of an American State and subject to its jurisdiction, are contrary to the acknowledgment of equality before the law that prohibits any discriminatory treatment established by law.

Workers whose situation is irregular are subjected to harsh treatment owing to their migratory status and, consequently, are considered an inferior group in relation to the legal or national workers of the State in question.

An organ of a State party to the international instruments mentioned above which, when interpreting domestic legislation, establishes a different treatment in the enjoyment of a labor right, based solely on the migratory status of a worker, would be making an interpretation contrary to the principle of legal equality.

This interpretation could provide justification for employers to dismiss undocumented workers, under the protection of a prior decision entailing the suppression of certain labor rights because of an irregular migratory status.

The circumstance described above is particularly critical when we consider that this irregular situation of the undocumented worker leads to the latter being afraid to have recourse to the government bodies responsible for monitoring compliance with labor standards; consequently, employers who utilize such practices are not punished. It is more advantageous from a financial point of view to dismiss an undocumented worked because, contrary to what happens when national or legal resident workers are dismissed, the employer is not obliged to compensate such dismissals in any way; and this is in “evident contradiction with the principle of equality before the law.”

The right to equality before the law is not applicable only with regard to the enjoyment and exercise of labor rights, it also extends to all rights recognized in domestic legislation; thus it covers “a much broader universe of rights that the fundamental rights and freedoms embodied in international law.” The scope of the right to equality “has important applications in the jurisdiction of human rights bodies.” For example, the United Nations Human Rights Committee has examined complaints concerning discrimination of rights that are not expressly included in the International Covenant on Civil and Political Rights, and rejected the argument that it lacks the competence to hear complaints about discrimination in the enjoyment of rights protected by the International Covenant on Economic, Social and Cultural Rights.

Mexico referred to the contents of General Comment 18 of the Human Rights Committee on Article 26 of the International Covenant on Civil and Political Rights.

Regarding the second question of the request (supra para. 4):
The provisions of Articles 2(1) of the Universal Declaration, II of the American Declaration, 2 and 26 of the International Covenant on Civil and Political Rights, and 1 and 24 of the American Convention, underscore the obligation of States to ensure the effective exercise and enjoyment of the rights encompassed by those provisions, and also the prohibition to discriminate for any reason whatever.

The obligation of the American States to comply with their international human rights commitments “goes beyond the mere fact of having laws that ensures compliance with such rights.” The acts of all the organs of an American State must strictly respect such rights, so that “the conduct of the State organs leads to real compliance with and exercise of the human rights guaranteed in international instruments.”

Any acts of an organ of an American State resulting in situations contrary to the effective enjoyment of the fundamental human rights, would be contrary to that State’s obligation to adapt its conduct to the standards established in international human rights instruments.

Regarding the third question of the request (supra para. 4):
It is “unacceptable” for an American State to subordinate or condition in any way respect for fundamental human rights to the attainment of migratory policy objectives contained in its laws, evading international obligations arising from the International Covenant on Civil and Political Rights and other obligations of international human rights law of an erga omnes nature. This is so, even when domestic policy objectives are cited, which are provided for in domestic legislation and considered legitimate for attaining certain ends from the Government’s point of view, “including, for example, the implementation of a migratory control policy based on discouraging the employment of undocumented aliens.”

Even in the interests of public order – which is the ultimate goal of the rule of law – it is unacceptable to restrict the enjoyment and exercise of a right. And, it would be much less acceptable to seek to do so by citing domestic policy objectives contrary to the public welfare.

“Although […] in some cases and in very specific circumstances, an American State may restrict or condition the enjoyment of a particular right, in the situation brought to the attention of the Court […] the requirements for these circumstances are not met.”

Article 5(2) of the International Covenant on Civil and Political Rights enshrines the pre-eminence of the norm most favorable to the victim; “this establishes the obligation to seek, in the corpus iuris gentium, the norm intended to benefit the human being as the ultimate owner of the rights protected in international human rights law.”

This is similar to transferring to international human rights law the Martens clause, which is part of international humanitarian law, and which confirms the principle of the applicability of international humanitarian law to all circumstances, even when existing treaties do not regulate certain situations.

The legal effects of obligations erga omnes lato sensu are not established only between the contracting parties to the respective instrument. These effects “are produced as rights in favor of third parties (stipulation pour autrui), thus recognizing the right, and even the obligation, for other States – whether or not they are parties to the instrument in question – to guarantee their fulfillment.” In this respect, Mexico invoked the decisions of the International Court of Justice in the Barcelona Traction (1970), East Timor (1995) and Implementation of the Convention for the Prevention and Punishment of the Crime of Genocide (1996) cases.

International case law, with the exception of that related to war crimes, “has not interpreted […] fully the legal regime applicable to obligations erga omnes, or, at best, it has done so cautiously and perhaps with a certain trepidation. The Inter-American Court of Human Rights is hereby called on to play an essential role in establishing the applicable law and affirming the collective guarantee that is evident in Article 1 of its Statute.”

Regarding the fourth question of the request (supra para. 4):
Abundant “teachings of the most highly qualified publicists of the various nations (Article 38, paragraph (d), of the Statute of the International Court of Justice)[,] have stated that the fundamental human rights belong ab initio to the domain of norms of ius cogens.” Judges have also rendered individual opinions about the legal effect of recognition that a provision enjoys the attributes of a norm of jus cogens, in accordance with Article 53 of the Vienna Convention on the Law of Treaties.

Mexico referred to the commentary of the International Law Commission on Articles 40 and 41 of the then draft articles on State responsibility.

As in the case of obligations erga omnes, “case law has acted cautiously and even lagged behind the opinio iuris communis (the latter as a manifestation of the principle of universal morality) to establish the norms of jus cogens concerning the protection of the fundamental human rights definitively and to clarify the applicable legal norms.”

Furthermore, in the brief submitted on November 15, 2002 (supra paras. 9 and 12), Mexico added that:

Regarding the first question of the request (supra para. 4):
This question “is intended to clarify the existence of fundamental labor rights which all workers should enjoy[,] and which are internationally recognized in different instrument [,] and to determine whether denying those rights to workers because of their migratory status would signify according a harmful treatment, contrary to the principles of legal equality and non-discrimination.”

States may accord a distinct treatment to documented migrant workers and to undocumented migrant workers, or to aliens with regard to nationals. For example, political rights are only recognized to nationals. However, in the case of internationally recognized human rights, all persons are equal before the law and have the right to equal protection in accordance with Article 26 of the International Covenant on Civil and Political Rights.

A harmfully distinct treatment may not be accorded in the implementation of the fundamental labor rights, “even though, except as provided for in this basic body of laws, States are empowered to accord a distinct treatment.” Harmfully distinct treatment of undocumented migrant workers would violate fundamental labor rights.

Several international instruments permit us to identify the fundamental labor rights of migrant workers. For example, Articles 25 and 26 of the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families recognize fundamental labor rights to all migrant workers, irrespective of their migratory status.

In addition, on November 1, 2002, the International Labor Office of the International Labor Organization issued a formal opinion on the scope and content of ILO Convention No. 143 concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers and Recommendation No. 151 on Migrant Workers. This opinion elaborates on other fundamental labor rights of all migrant workers. Mexico agrees with the International Labor Office that there is a basic level of protection that is applicable to documented and undocumented workers.

Regarding the second question of the request (supra para. 4):
States may accord a different treatment to migrant workers, whose situation is irregular; however, under no circumstance are they authorized to take discriminatory measures as regards the enjoyment and protection of internationally recognized human rights.

Even though it is possible to identify fundamental labor rights based on the international instruments, “this concept is evolving. As new norms arise and are incorporated into the body of fundamental labor rights, they should benefit all workers, irrespective of their migratory status.”

In response to the questions of some of the judges of the Court, Mexico added that:
The fundamental labor rights that may not be restricted are those that are established in international human rights instruments with regard to all workers, including migrants, irrespective of their regular or irregular situation. In this respect, there appears to be consensus, deriving from these international instruments, that there are “a series of rights that, by their very nature, are so essential to safeguard the principle of equality before the law and the principle of non-discrimination, that their restriction or suspension, for any reason, entails the violation of these two cardinal principles of international human rights law.” Some examples of these fundamental rights are: the right to equal remuneration for work of equal value; the right to fair and satisfactory remuneration, including social security and other benefits derived from past employment; the right to form and join trade unions to defend one’s interests; the right to judicial and administrative guarantees to determine one’s rights; the prohibition of obligatory or forced labor, and the prohibition of child labor.

Any restriction of the enjoyment of the fundamental rights derived from the principles of equality before the law and non-discrimination violates the obligation erga omnes to respect the attributes inherent in the dignity of the human being, and the principal attribute is equality of rights. Specific forms of discrimination can range from denying access to justice to defend violated rights to denying rights derived from a labor relationship. When such discrimination is made by means of administrative or judicial decisions, it is based on the thesis that the enjoyment of fundamental rights may be conditioned to the attainment of migratory policy objectives.

The individual has acquired the status of a real active and passive subject of international law. The individual may be an active subject of obligations as regards human rights, and also individually responsible for non-compliance with them. This aspect has been developed in international criminal law and in international humanitarian law. On other issues, such as the one covered by this request for an advisory opinion, it can be established that “in the case of fundamental norms, revealed by objective manifestations and provided there is no doubt concerning their validity, the individual, such as an employer, may be obliged to respect them, irrespective of the domestic measures taken by the State to ensure or even violate, compliance with them.”

The “transfer” of the Martens clause to the protection of the rights of migrant workers would imply that such persons had been granted an additional threshold of protection, according to which, in situations in which substantive law does not recognize certain fundamental rights or considers them less important, such rights would be justiciable. The safeguard of such fundamental human rights as those evident from the principles of equality before the law and non-discrimination, is protected by “the principles of universal morality,” referred to in Article 17 of the OAS Charter, even in the absence of provisions of substantive law that are immediately binding for those responsible for ensuring that such rights are respected.

Honduras: In its written and oral comments, Honduras stated that:

Regarding the first question of the request (supra para. 4):
Not every legal treatment establishing differences violates per se the enjoyment and exercise of the right to equality and to non-discrimination. The State is empowered to include objective and reasonable restrictions in its legislation in order to harmonize labor relations, provided it does not establish illegal or arbitrary differences or distinctions. “Legality is intended to guarantee the right to fair, equitable and satisfactory conditions.”

The State may regulate the exercise of rights and establish State policies by legislation, without this being incompatible with the purpose and goal of the Convention.

Regarding the second question of the request (supra para. 4):
The legal residence of a person who is in an American State cannot be considered conditio sine qua non to ensure the right to equality and non-discrimination, as regards the obligation established in Article 1(1) of the American Convention and in relation to the rights and freedoms recognized to all persons in this treaty.

Article 22 of the American Convention guarantees freedom of movement and residence, so that every person lawfully in the territory of another State has the right to move about in it and to reside in it subject to the provisions of the law. The American Convention and the International Covenant on Civil and Political Rights grant “States the right that those subject to their jurisdiction must observe the provisions of the law.”

The regulation concerning legal residence established in the laws of the State does not violate the international obligations of the State if it has been established by a law – strictu sensu and including the requirements that are established – which does not violate the intent and purpose of the American Convention.

“[I]t cannot be understood that legislation establishes a harmfully distinct treatment for undocumented migrant workers, when the Convention determines that the movement and residence of an alien in the territory of a State party should be legal and is not incompatible with the intent and purpose of the Convention.”

Regarding the third question of the request (supra para. 4):
Determining migratory policies is a decision for the State. The central element of such policies should be respect for the fundamental rights arising from the obligations assumed before the international community. An interpretation that violates or restricts human rights “subordinating them to the attainment of any objective[,] violates the obligation to protect such rights.” The interpretation must not deviate from the provisions of the American Convention, or its intent and purpose.

The purpose of compliance with the provisions of the law is to protect national security, public order, public health or morality, and the rights and freedoms of others.

The General Study on Migrant Workers conducted by the International Labour Organization concluded that “it is permissible” to restrict an alien's access to employment, when two conditions are met: a) in the case of “limited categories of employment or functions”; and b) when the restriction is necessary in “the interests of the State.” These conditions may refer to situations in which the protection of the State's interest justifies certain employments or functions being reserved to its citizens, owing to their nature.

Regarding the fourth question of the request (supra para. 4):
In certain cases, inequality in treatment by the law may be a way of promoting equality or protecting those who appear to be weak from a legal standpoint.

The fact that there are no discriminatory laws or that the legislation of Honduras prohibits discrimination is not sufficient to ensure equality of treatment or equality before the law in practice.

The American States must guarantee a decorous treatment to the migrant population in general, in order to avoid violations and abuse of this extremely vulnerable sector.

Nicaragua: In its written and oral comments, Nicaragua indicated that:

The request for an advisory opinion submitted by Mexico “is one more measure that can assist States, and national and international organizations, define the scope of their peremptory obligations[,] established in human rights treaties, and apply and comply with them, in particular, with regard to strengthening and protecting the human rights of migratory workers.”

Article 27 of the Constitution of Nicaragua establishes that, in national territory, all persons enjoy State protection and recognition of the rights inherent in the human being, the respect, promotion and protection of human rights, and the full exercise of the rights embodied in the international human rights instruments acceded to and ratified by Nicaragua.

El Salvador: In its written and oral comments, El Salvador indicated that:

It considers that the request should take into account provisions of the International Covenant on Economic, Social and Cultural Rights, the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of San Salvador”) and the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, “because these treaties are relevant to the opinion requested on the protection of human rights in the American States.”

“[T]he implementation and interpretation of secondary legislation cannot subordinate the international obligations of the American States embodied in international human rights treaties and instruments.”

When an employment relationship is established between a migrant worker and an employer in an American State, the latter is obliged to recognize and guarantee to the worker the human rights embodied in international human rights instruments, including those relating to the right to employment and to social security, without any discrimination.

Canada: In its written comments, Canada stated that:

Three elements of Canadian legislation and policy relate to the subject of the request for an advisory opinion: first, the international support that Canada provides to matters concerning migrants; second, the categories of migrants and temporary residents (visitors) that are established in the Canadian Immigration and Refugee Protection Act; and, third, the protection of fundamental rights and freedoms in Canada.

Canada is concerned about the violations of the rights of migrants throughout the world. Canada supported the United Nations resolution establishing the Office of the Special Rapporteur on the Human Rights of Migrants and collaborated in drafting the mandate of this Office in order to make it strong and balanced.

Immigration is a key component of Canadian society. Attracting and selecting migrants can contribute to the social and economic interests of Canada, reuniting families and protecting the health, security and stability of Canadians.

The term “migrant” is not generally used in Canada. However, the term “migrants,” as understood in the international context, covers three categories of person.

The first category corresponds to permanent residents. It includes migrants, refugees who come to live in Canada and asylum seekers who obtained this status through the corresponding procedure. All these persons have the right to reside permanently in Canada and to request citizenship after three years' residence.

The second category refers to persons who have requested refugee status, as defined in the 1951 United Nations Convention relating to the Status of Refugees and its 1967 Protocol, and who have not obtained the corresponding response. If it is established that the person fulfills the conditions to request refugee status, he has the right to represent himself or to be represented by a lawyer in the proceeding to determine his refugee status. Any person who represents a serious danger to Canada or to Canadian society may not proceed with a request for refugee status. In most cases, those who request refugee status have access to provincial social services, medical care and the labor market. They and their minor children have access to public education (from pre-school to secondary). Once they are granted refugee status, they may request permanent residence and include their immediate family in their request, even if the latter are outside Canada.

The third category corresponds to temporary residents who arrive in Canada for a temporary stay. There are several categories of temporary residents according to the Immigration and Refugee Protection Act: visitors (tourists), foreign students and temporary workers.

Although temporary workers do not enjoy the same degree of freedom as Canadian citizens and permanent residents on the labor market, their fundamental human rights are protected by the Canadian Charter of Rights and Freedoms, enacted in 1982 as part of the 1982 Constitution Act. This Charter applies to all government legislation, programs and initiatives (federal, provincial, territorial and municipal). Most of the fundamental rights and freedoms protected by the Canadian Charter of Rights and Freedoms are guaranteed to all individuals who are in Canadian territory, irrespective of their migratory status or citizenship. Some of these rights are: freedom of association, the right to due process, the right to equality before the law, and the right to equal protection without discrimination of any kind owing to race, national or ethnic origin, color, religion, sex, age, or mental or physical disability. There are some exceptions, because the Canadian Charter of Rights and Freedoms guarantees some rights only to Canadian citizens, such as: the right to vote, and the right to enter, remain in and depart from Canada. The right to travel between the provinces, and the right to work in any province is guaranteed to citizens and permanent residents. Many of these guarantees reflect the right of sovereign States to control the movement of persons across international borders.

The right to equality guaranteed by section 15 of the Canadian Charter of Rights and Freedoms is of particular importance in the context of this request for an advisory opinion. In 1989, in Andrews v. Law Society of British Columbia, the Supreme Court of Canada established that the right to equality includes substantive rather than merely formal equality. Substantive equality usually refers to equal treatment of all individuals and, on some occasions, requires that the differences that exist be acknowledged in a non-discriminatory manner. For example, giving equal treatment to the disabled involves taking the necessary measures to adapt to such differences and to promote the access and inclusion of such individuals in government programs.

In order to demonstrate that section 15 of the Canadian Charter of Rights and Freedoms has been violated, a person alleging discrimination must prove: 1) that the law has imposed on him a different treatment from that imposed on others, based on one or more personal characteristics; 2) that the differential treatment is due to discrimination based on race, national or ethnic origin, color, religion, sex, age, mental or physical disability, or nationality; and 3) that discrimination in the substantive sense exists, because the person is treated with less concern, respect and consideration, so that his human dignity is offended.

For example, in Lavoie v. Canada, most members of the Supreme Court of Canada decided that the preference given to Canadian citizens in competitions for employment in the federal public service discriminates on the grounds of citizenship, and therefore violates section 15(1) of the Canadian Charter of Rights and Freedoms.

In addition to constitutional protection, the federal provincial and territorial governments have enacted human rights legislation to promote equality and prohibit discrimination in employment and services. This legislation applies to the private sector acting as an employer and provider of services, and to the governments.

The Supreme Court of Canada has established that the courts must interpret human rights legislation so as to advance towards the goal of ensuring equal opportunities to all. Following this interpretation, the Supreme Court has reached a series of conclusions on the scope of human rights codes, including the principle of their precedence over regular legislation, unless the latter establishes a clear exception. Discriminatory practices can be contested, even when they are legal. Although the Canadian jurisdictions have different human rights legislation, they are subject to these general principles and must provide the same fundamental protections.

Inter-American Commission on In its written and oral comments, the Commission stated that:
Human Rights:
In international human rights law, the principle of non-discrimination enshrines equality between persons and imposes certain prohibitions on States. Distinctions based on gender, race, religion or national origin are specifically prohibited in relation to the enjoyment and exercise of the substantive rights embodied in international instruments. Regarding these categories, any distinction that States make in the application of benefits or privileges must be carefully justified on the grounds of a legitimate interest of the State and of society, “which cannot be satisfied by non-discriminatory means.”

International human rights law prohibits not only deliberately discriminatory policies and practices, but also policies and practices with a discriminatory impact on certain categories of persons, even though a discriminatory intention cannot be proved.

The principle of equality does not exclude consideration of migratory status. States are empowered to determine which aliens may enter their territory and under what conditions. However, the possibility of identifying forms of discrimination that are not specifically intended, but which constitute violations of the principle of equality must be preserved.

States may establish distinctions in the enjoyment of certain benefits between its citizens, aliens (with regular status) and aliens whose situation is irregular. Nevertheless, pursuant to the progressive development of norms of international human rights law, this requires detailed examination of the following factors: 1) the content and scope of the norm that discriminates between categories of persons; 2) the consequences that this discriminatory treatment will have on the persons prejudiced by the State’s policy or practice; 3) the possible justifications for this differentiated treatment, particularly its relationship to the legitimate interest of the State; 4) the logical relationship between the legitimate interest and the discriminatory practice or policies; and 5) whether or not there are means or methods that are less prejudicial for the individual and allow the same legitimate ends to be attained.

The international community is unanimous in considering that the prohibition of racial discrimination and of practices directly associated with it is an obligation erga omnes. The jus cogens nature of the principle of non-discrimination implies that, owing to their peremptory nature, all States must observe these fundamental rules, whether or not they have ratified the conventions establishing them, because it is an obligatory principle of international common law. “Even though the international community has not yet reached consensus on prohibiting discrimination based on motives other than racial discrimination, this does not lessen its fundamental importance in all international laws.”

To underscore the importance of the principle of equality and non-discrimination, human rights treaties expressly establish this principle in articles related to determined categories of human rights. In this respect, we should mention Article 8.1 of the American Convention, owing to its particular relevance for this request for an advisory opinion. Equality is an essential element of due process.

Any distinction based on one of the elements indicated in Article 1 of the American Convention entails “a strong presumption of incompatibility with the treaty.”

Basic human rights must be respected without any distinction. Any differences established with regard to the respect and guarantee of the fundamental rights must have limited application and comply with the conditions indicated in the American Convention. Some international instruments explicitly establish certain distinctions.

At times the principle of equality requires States to adopt positive measures to reduce or eliminate the conditions that cause or facilitate the perpetuation of the discrimination prohibited by the treaties.

The American States are obliged to guarantee the basic protection of the human rights established in the human rights treaties to all persons subject to their authority, “and [this] does not depend[…] for its application on factors such as citizenship, nationality or any other aspect of the person, including his migratory status.”

The rights embodied in the human rights treaties may be regulated reasonably and the exercise of some of them may be subject to legitimate restrictions. The establishment of such restrictions must respect the relevant formal and substantive limits; in other words, it must be accomplished by law and satisfy an urgent public interest. Restrictions may not be imposed for discriminatory purposes, nor may they be applied in a discriminatory manner. Furthermore, “any permissible restriction of rights may never imply the total negation of the right.”

The elaboration and execution of migratory policies and the regulation of the labor market are legitimate objectives of the State. To achieve such objectives, States may adopt measures that restrict or limit some rights, provided they respect the following criteria: 1) some rights are non-derogable; 2) some rights are reserved exclusively for citizens; 3) some rights are conditioned to the status of documented migrant, such as those relating to freedom of movement and residence; and 4) some rights may be restricted, provided the following requirements are met: a) the restriction must be established by law; b) the restriction must respond to a legitimate interest of the State, which has been explicitly stated; c) the restriction must have a “reasonable relationship to the legitimate objective”, and d) there must not be “other means to achieve these objectives that are less onerous for those affected.”

It is the State’s responsibility to prove that it is “permissible” to restrict or exclude a specific category of persons, such as aliens, from the application of some provision of the international instrument. “Migratory status can never be grounds for excluding a person from the basic protections granted to him by international human rights law.”

In addition, the Inter-American Commission on Human Rights indicated that labor rights are protected in international human rights instruments and, in this respect, referred to the Declaration on Fundamental Principles and Rights at Work of the International Labor Organization (ILO) and the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families.

Bearing in mind the development of international human rights law and international labor law, it can be said that “there are a series of fundamental labor laws that derive from the right to work and are at the very center of it.”

Lastly, the Inter-American Commission on Human Rights requested the Court to systematize the rights related to employment “ranking them in order to show that some of these labor rights are considered fundamental” and that, consequently, such rights would “comprise the category of rights regarding which no discrimination is allowed, not even owing to migratory status.”

Costa Rica: In its written and oral comments, Costa Rica stated that it would not refer to the last question formulated by the requesting State. Before making its comments on the other three questions, it set out the following considerations on the “protection of the human rights of migrants in Costa Rica” and on the “principle of reasonableness in the differential treatment of nationals and aliens.”

The Costa Rican Constitution establishes a situation of equality in the exercise of rights and obligations between nationals and aliens, with certain exceptions, such as the prohibition to intervene in the country’s political affairs, and others established in legal norms. Those exceptions may not violate the other rights enshrined in the Constitution.

“Despite legal measures and executive actions, some situations of a less favorable treatment for illegal immigrant workers unfortunately occur in the area of employment.” The General Law on Migration and Aliens prohibits the employment of aliens residing in the country illegally; however, it also establishes that those who do employ such persons are not exempt from the obligation to provide workers with the wages and social security benefits stipulated by law. In this respect, the Legal Department of the Directorate of Migration and Aliens has established that all workers, irrespective of their migratory status, have the right to social security.

The principles of equality and non-discrimination do not imply that all aspects of the rights of aliens must be equated with the rights of nationals. Each State exercises its sovereignty by defining the legal status of aliens within its territory. To this end, “the principle of reasonableness should be used to define the scope of the activities of aliens in a country.”

The Constitutional Chamber of the Supreme Court of Justice of Costa Rica has established that reasonableness is a fundamental requirement for an exclusion or restriction to the rights of aliens compared to nationals to be constitutional. Exclusion is when a right is not recognized to aliens, denying them the possibility of performing some activity. Examples of constitutional exclusions relating to aliens are the prohibition to intervene in political affairs and to occupy certain public offices. To the contrary, restrictions recognize a right to the alien, but restrict or limit it reasonably, taking into account the protection of a group of nationals or a specific activity, or the fulfillment of a social function. Restrictions based exclusively on nationality should not be imposed because xenophobic factors, unrelated to parameters of reasonableness, could exist.

The Constitutional Chamber also indicated that “[e]vidently, the equality of aliens and nationals declared in Article 19 of the Constitution is related to that core of human rights regarding which no distinctions are admissible for any reason whatsoever, particularly owing to nationality. However, the Constitution reserves the exercise of political rights to nationals, because such rights are an intrinsic consequence of the exercise of the sovereignty of the people[…].”

The Constitutional Court has emphasized that any exception or restriction to the exercise of a fundamental rights affecting an alien must have constitutional or legal rank, and that the measures should be reasonable and proportional and should not be contrary to human dignity.

The Constitutional Court has declared some norms unconstitutional because it considered them irrational or illogical. They include: legal restrictions for aliens to take part as merchants in a “bonded warehouse”; the prohibition for aliens to be notaries, for advertisements recorded by aliens to be broadcast, and for aliens to act as private security agents; and the exclusion of foreign children as possible beneficiaries of the basic education allowance.

Regarding the first question of the request (supra para. 4):
No human right is absolute and, therefore, the enjoyment of human rights is subject to certain restrictions. The legislator may establish logical exceptions arising from the natural difference between nationals and aliens, but may not establish distinctions that imply a void in the principle of equality. “It should be recalled that, in all countries, there are differences of treatment – which do not conflict with international standards of protection – for reasons such as age and gender.”
There can be no differences as regards salary, and working conditions or benefits.

As in most countries, Costa Rican law establishes that aliens who reside illegally in the country may not work or carry out paid or lucrative tasks, either for their own or someone else’s account with or without a relation of dependency. Accordingly, the irregular situation of a person in a State of which he is not a national results per se in a considerable limitation in his conditions of access to many workers’ rights. Many social benefits for health and employment security and those that are strictly related to employment “entail a series of bureaucratic procedures which cannot be carried out when a person is undocumented.”

When the domestic legislation of a State establishes essential requirements that a persons must fulfill to be eligible for a specific service, this cannot be considered to signify a harmfully distinct treatment for undocumented migrant workers. “Moreover, if an employer includes the names of his undocumented workers in certain records, it would imply that he is violating migratory legislation, which would make him liable to punishment.”

Owing to the way in which States organize their administrative structure, in practice, there are a series of provisions that indirectly prevent undocumented migrant workers from enjoying their labor rights.

Notwithstanding the above, an employer who has engaged undocumented workers is obliged to pay them wages and other remunerations. Furthermore, “the irregular status of a person does not prevent him from having recourse to the courts of justice to claim his rights”; in other words, “as regards access to judicial bodies, irregular immigrant workers and members of their families have the right to judicial guarantees and judicial protection in the same conditions as nationals.”

Regarding question 2(1) of the request (supra para. 4):
Respect for the principles of equality and non-discrimination does not mean that some restrictions or requirements for the enjoyment of a specific right cannot be established, using a criterion of reasonableness. The classic example is the exercise of political rights, which is reserved for nationals of a country.

There are other rights that may not be restricted or limited in any way and must be respected to all persons without distinction. In Costa Rica, the right to life is one of these rights. This implies, for example, that a directive ordering border guards to fire on those who try and enter national territory through a non-authorized border post would be a flagrant violation of human rights.

Regarding question 2(2) of the request (supra para. 4):
The legal residence of an alien in a recipient State is not a necessary condition for his human and labor rights to be respected. All persons, regardless of whether or not they are authorized to enter or remain in Costa Rica, may have recourse to the Constitutional Chamber of the Supreme Court of Justice to uphold or re-establish their constitutional and other fundamental rights.

Regarding the third question of the request (supra para. 4):
To answer this question, we must refer to the rank of human rights in domestic law. The human rights instruments in force in Costa Rica “are not only of similar weight to the Constitution, but, to the extent that they grant greater rights or guarantees to individuals, they have prevalence over the Constitution.” The Constitutional Chamber of the Supreme Court of Justice has taken international human rights legislation as the benchmark for interpreting the Constitution or as a parameter of the constitutionality of other lesser legal norms.

Any migratory norm or policy contrary to the provisions of the International Covenant on Civil and Political Rights would be totally null and void, even if adopted as law by the Legislature.

The Legal Clinics of the College of In their brief of November 27, 2002, indicated that:
Jurisprudence of the Universidad
San Francisco de Quito: Regarding the first question of the request (supra para. 4):
Undocumented migrant workers should not lack protection before the State; migratory status does not deprive them of their human condition. The violation of domestic legislation cannot be considered grounds to deprive a person of the protection of his human rights; in other words, it does not exempt States from complying with the obligations imposed by international law. “To affirm the contrary would be to create an indirect means of discriminating against undocumented migrant workers by, to a certain extent, denying them legal personality and creating legal inequality between persons.”
There is no provision of the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights that allows the right to work to be restricted owing to migratory status. Article 26 of the International Covenant on Civil and Political Rights is explicit when referring to national origin as grounds that may not be used to discriminate against a person; moreover, it adds that neither can “other status” be cited to deny a person equal treatment by the law. “The norm is clear: the documented or undocumented status may not be used as grounds to deny the exercise of any human right and, consequently, to be treated unequally by the law.” Moreover, no interpretation of Article 24 of the American Convention allows equality to be subordinated to a person’s legal residence or citizenship.

Nowadays, migrants are faced with discriminatory State legislation and labor practices and, what is worse, they are constantly denied access to governmental bodies and guarantees of due process; “this is a serious situation for migrants who are documented, but even more so for those who have been unable to legitimize their legal status in the country in which they reside.”

The United Nations and the International Labour Organization (ILO) have drawn up norms to guard against the lack of legal protection for migrants. For example, when referring to migrant workers, the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families does not establish any difference on the basis of their legal status, “in other words, it recognizes to migrant workers all the human, civil, political, social, cultural or labor rights, whether or not they are documented.” Furthermore, in a previous effort to improve the human rights situation of migrants, ILO Convention No. 143 concerning Migrant Workers (Supplementary Provisions) of 1975, contains important provisions in this respect.

The General Conference of the International Labor Organization has issued two relevant recommendations. However, Recommendation No. 86 on Migrant Workers (revised in 1949) “is discriminatory, inasmuch as it only applies to workers who are accepted as migrant workers. It appears that it does not apply to undocumented migrant workers. In 1975, the International Labor Organization issued Recommendation No. 151 on Migrant Workers, which also only refers to documented migrants. “In other words, although there is concern for migrant workers, they are recognized rights only because of their legal status, and not because of their status as human beings.”

In this respect, the route followed by the United Nations in the field of international law has been more coherent. For example, resolution 1999/44 of the Commission on Human Rights recognizes that the principles and standards embodied in the Universal Declaration of Human Rights apply to everyone, including migrants, without making any reference to their legal status.

The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families refers to the migrant worker without differentiating between the documented and the undocumented migrant worker.

States may not provide different treatment to migrants who are in their territory, whatever their migratory status. “[T]he Court must respond to the first question by affirming that[,] in accordance with the international norms in force, a harmfully different treatment may not be established for undocumented migratory workers.”

Regarding the second question of the request (supra para. 4):
States may not establish discrimination because a person’s residence has not been regularized, and it may not disregard the guarantees necessary for the protection of universal fundamental rights. “It is unacceptable for a State not to guarantee and protect the human rights of all persons in its territory.”

The articles mentioned in the questions at issue establish categorically that all persons are equal before the law. An individual does not acquire the status of person when he is admitted legally into a certain territory; it is an intrinsic quality of the human being. Furthermore, the provisions referred to contain a list of grounds on which a person may not be discriminated against and conclude with phrases such as “nor any other” or “any other condition.” The rights and freedoms proclaimed in international instruments “belong to all individuals, because they are persons, and not because of the recognition a State grants them, owing to their migratory status.” “[I]nternational law does not permit any grounds for distinction that would allow human rights to be impaired or restricted.”

The State may not deny any person the labor rights embodied in many international norms. The denial of one or more labor rights, based on the undocumented status of a migrant workers is entirely incompatible with the obligations of the American States to ensure non-discrimination and the equal and effective protection of the law, to which the said provisions commit them.

According to Article 5 of the International Covenant on Civil and Political Rights and Article 29 of the American Convention, “it cannot be alleged that a State has the right to accept or not a certain individual into its territory and to limit the right to equality before the law, or any of the rights established in the said instrument.”

Regarding the third question of the request (supra para. 4):
“[I]t is unacceptable to restrict the enjoyment and exercise of a human right citing domestic policy objectives, even when public order (ordre public), the ultimate goal of any State, is involved.”

Human rights cannot be subordinated to domestic laws, whether these relate to migratory or any other policy. The right to non-discrimination cannot be conditioned to compliance with migratory policy objectives, even when such objectives are established in domestic legislation. “In accordance with international obligations, laws that restrict the equal enjoyment of human rights of any person are inadmissible and the State is obliged to abolish them.” Moreover, since they are of an erga omnes nature, these obligations may be applied to third parties that are not a party to the Convention recognizing them.

In addition to convention-related obligations concerning the prohibition to discriminate, all States have the obligation erga omnes, namely, to the international community, to prevent any form of discrimination, including discrimination derived from their migratory policy. The prohibition to discriminate is of fundamental importance to the international community; “consequently, no domestic policy may be aimed at tolerating or permitting discrimination in any form that affects the enjoyment and exercise of human rights.”

“[T]he Court must answer this question by indicating that any subordination of the enjoyment and exercise of human rights to the existence of migratory policies and the achievement of the objectives established in those policies is unacceptable.”

Regarding the fourth question of the request (supra para. 4):
International human rights law establishes limits to the exercise of power by States. These limits are determined in conventions and in customary law provisions and peremptory or jus cogens norms.

“Like obligations erga omnes, ius cogens contains elements of fundamental importance for the international community, elements that are so essential that they are more important than State consent, which, in international law, determines the validity of norms.”

There is little disagreement about the existence of these peremptory norms in international law. In this respect, the Vienna Convention on the Law of Treaties does not set limits to the content of jus cogens; that is, it does not determine what these peremptory norms are, but merely cites some examples. Article 53 of the Convention establishes four requisites for determining whether a norm is of a jus cogens character. They are: it must be a norm of general international law, it must be accepted and recognized by the international community, it must be non-derogable, and it may only be modified by a subsequent norm having the same character.

“Therefore, we must ask ourselves whether it would offend the human conscience and public morality if a State [should reject] the principle of non-discrimination and the right to equal and effective protection of the law. The answer is evidently in the affirmative.”

“The Court must evaluate whether the principle of non-discrimination and the right to equal and effective protection of the law fulfill the four requirements of a ius cogens norm.”

If the Court accepts that both the principle of non-discrimination and the right to equal and effective protection of the law are jus cogens norms, this would have several legal effects. In this regard, the European Court of Human Rights has indicated that such effects include: recognition that the norm ranks higher than any norm of international law, except other jus cogens norms; should there be a dispute, the jus cogens norm would prevail over any other norm of international law and any provision contrary to the peremptory norm would be null or lack legal effect.

The legal effects derived, individually and collectively, from the norms contained in Article 3(1) and 17 of the OAS Charter must be determined. According to these norms, the States parties assume a commitment, both individually and collectively, to “prevent, protect and punish” any violation of human rights. The spirit of Article 17 of the OAS Charter is to create binding principles for the States, even if they have not accepted the competence of the Court, so that they respect the fundamental rights of the individual. The Charter proclaims that human rights should be enjoyed without any distinction. Both the States parties and the OAS organs have the obligation to prevent any violation of human rights and to allow them to be enjoyed fully and absolutely.

“If the Court decides that the principle of non-discrimination is a rule of jus cogens[,] then we may infer that these norms are binding for States, whether or not the international conventions have been ratified; since […] the principles [of] jus cogens create obligations erga omnes.” If this principle were to be considered a norm of jus cogens it would form part of the fundamental rights of the human being and of universal morality.

The Court must answer this question by stating that the principle of non-discrimination is a peremptory international norm, “therefore, the provisions of Articles 3(1) and 17 of the OAS Charter must be interpreted similarly.”

The Delgado Law Firm: In its brief of December 12, 2002, stated that:

The decision of the United States Supreme Court in Hoffman Plastic Compounds Inc. v. National Labor Relations Board has given rise to uncertainty with regard to the rights of migrants in that country – a situation which could have serious implications for migrants.

In the area of labor law, the United States does not treat irregular migrants with equality before the law. The United States Supreme Court decided that a United States employer could violate the labor rights of an irregular migrant worker without having to give him back pay. In the Hoffman Plastic Compounds case, the United States Supreme Court did not impose a fine on the employer who violated the labor rights of an irregular migrant worker and did not order any compensation for the worker.

According to the decision in the Hoffman Plastic Compounds case, a migrant worker incurs in “serious misconduct” when he obtains employment in breach of the Immigration Reform and Control Act (IRCA). However, in this case, the United States Supreme Court did not deny that the employer had dismissed the worker for trying to organize a union, which entailed the responsibility of the employer for having committed an evident violation of the labor laws. Even though the employer committed this violation, he was not treated equally by the Supreme Court.

Although the United States affirms that its domestic policy discourages illegal immigration, in practice, it continues to take measures that make it less expensive and therefore more attractive for United States employers to engage irregular migrant workers. For example, even in the United States, it is agreed that the decision in the Hoffman Plastic Compounds case will result in an increase in discrimination against undocumented workers, because employers can allege that they did not know that the worker was undocumented so as to avoid any responsibility for violating the rights of their workers.

This discriminatory treatment of irregular migrants is contrary to international law. Using cheap labor without ensuring workers their basic human rights is not a legitimate immigration policy.

The effects of the Immigration Reform and Control Act and the Hoffman Plastic Compounds case indicate that there is an increase in discrimination against undocumented migrant workers. Indeed, the reasoning of the United States Supreme Court suggests that allowing irregular workers to file actions or complaints would only “encourage illegal immigration.”

In the United States, irregular workers are exposed to “dangerous” working conditions. Domestic immigration policy should not be distorted in order to use it to exonerate employers who expose irregular migrant workers to unreasonable risk of death.

The United States continue to benefit daily from the presence in its workforce of a significant number of irregular migrant workers. Conservative estimates suggest that there are at least 5.3 million irregular migrants working in the United States and that three million of them are Mexicans. No State should be allowed to benefit knowingly and continuously from the labor of millions of migrant workers, while pretending it does not want such workers and, hence, does not have to guarantee them even the most basic rights. Migrant workers have the right to equal protection of the law, including the protection of their human rights.

Undocumented workers who have filed complaints about remuneration and working conditions in the United States have been intimidated by their employers, who usually threaten to call the Immigration and Naturalization Service.

Moreover, in the Hoffman Plastic Compounds case, the United States Supreme Court stated that, owing to his migratory status, no individual whose situation in the country was irregular could require his former employer to pay back wages.

The principle of equality before the law embodied in Article 26 of the International Covenant on Civil and Political Rights obliges States not to enact legislation that creates differences between workers based on their ethnic or national origin.

The principle of equality before the law applies to the enjoyment of civil, political, economic and social rights, without any distinction.

All workers have the right to recognition of their basic human rights, including the right to earn their living and to be represented by a lawyer, despite their migratory status.

The International Labor Organization has drafted important treaties, such as Convention No. 143 concerning Migrations in Abusive Conditions and the Promotion of Equal Opportunity and Treatment of Migrant Workers. This Convention establishes equal treatment between migrants and nationals as regards security of employment, rehabilitation, social security, employment-related rights and other benefits.

Many of the rights included in the International Labor Organization conventions are considered international customary law. These rights are also included in the most important human rights conventions, such the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination.

Lastly, it should be stressed that human rights extend to all migrant workers, whether their situation in a State is regular or irregular.

Students of the Law Faculty of the Universidad Nacional Autónoma de México (UNAM): In their written and oral statements, indicated that:

Regarding the admissibility of the consultation:
The advisory opinion requested is clearly important, “not only for Mexico, but also for all Latin America, owing to the number of migrants in an irregular situation in other countries and because they are considered a vulnerable group, prone to systematic violation of their human rights.”

Regarding the first question of the consultation (supra para. 4):
Even though labor rights have been included among the economic, social and cultural rights, in reality, they form part of an indissoluble whole of all human rights, with no hierarchy, because they are inherent to human dignity.

“The problem of discrimination occurs particularly in labor-related matters.” Undocumented migrants endure several disadvantages; for example, they are paid low wages, receive few or no social benefits or health expenses, are not allowed to join unions and are under constant threat of dismissal or being reported to the migration authorities. “This is confirmed institutionally.” Some United States laws and decisions establish a distinction between undocumented migrants, nationals and residents “that is neither objective nor reasonable and, consequently, results in evident discrimination.”

The principle of non-discrimination applies to all rights and freedoms, pursuant to domestic law and international law, in accordance with the provisions of Article II of the American Declaration and Articles 1(1) and 24 of the American Convention.

Obviously, States have the sovereign authority to enact labor laws and regulations and establish the requirements they consider appropriate for aliens who become part of their workforce. However, this authority may not be exercised disregarding the international human rights corpus juris.

“Human rights do not depend on the nationality of an individual, on the territory where he is, or on his legal status, because they are inherent in him. Upholding the contrary would be akin to denying human dignity. If the exercise of authority is limited by human rights, State sovereignty cannot be cited to violate them or prevent their international protection.”

Regarding the second question of the consultation (supra para. 4):
Human rights treaties are based on a notion of collective guarantee; consequently, they do not establish mutual obligations between States; rather, they determine the State obligation to respect and guarantee the rights contained in such instruments to all persons.

Any interpretation of the international human rights instruments must take into account the pro homine principle; in other words, they must be interpreted so as to give preference to the individual, “it is therefore unacceptable that Article 2, paragraph 1, of the Universal Declaration, Article II of the American Declaration, and Articles 2 and 26 of the Covenant, as well as Articles 1 and 24 of the American Convention should be interpreted as limiting the human rights of a group of persons, merely because of their undocumented status.”

An interpretation of any international instrument that leads to the restriction of a right or freedom of an individual, who is not legally resident in the country where he resides, is contrary to the object and purpose of all international human rights instruments.

Regarding the third question of the consultation (supra para. 4):
States have the sovereign authority to issue migratory laws and regulations and to establish differences between nationals and aliens, provided that such domestic norms are compatible with their international human rights obligations. These differences must have an objective, reasonable justification; consequently, they should have a legitimate objective and there must be a reasonable relationship of proportionality between the means used and the aim sought.

A State party to the International Covenant on Civil and Political Rights which enacts a law that clearly violates this instrument or takes measures that limit the rights and freedoms embodied in this treaty to the detriment of a group of persons incurs international responsibility,

Equality before the law and non-discrimination are essential principles that apply to all matters. Therefore, any act of the State, including an act in keeping with its domestic laws, which subordinates or conditions the fundamental human rights of a group of persons, entails the State’s non-compliance with its obligations erga omnes to respect and guarantee those rights. Consequently, it results in the increased international responsibility of the State and any subject of international law may legitimately cite this.
Regarding the fourth question of the consultation (supra para. 4):
The 1969 Vienna Convention on the Law of Treaties has recognized the existence of norms of jus cogens, by establishing them as peremptory norms of international law. However, it did not define them clearly.

Norms of jus cogens respond to the need to establish an international public order (ordre public), because a community ruled by law requires norms that are superior to the will of those who form part of it.

The international community has repudiated violations of the principle of non-discrimination and the right to the equal and effective protection of the law.

The principle of non-discrimination and the right to equality before the law are of transcendental importance in relation to the situation of undocumented migrant workers, because their violation involves the systematic violation of other rights.

The principle of non-discrimination and the right to equal protection of the law, “which are the essence of human rights, are norms of ius cogens.” Norms of jus cogens are enforceable erga omnes, because they contain elemental values and concerns of mankind based on universal consensus, owing to the special nature of the prerogative they protect.

Javier Juárez, of the Law Office of Sayre & Chavez: In his brief of February 6, 2003, stated that:

On March 27, 2002, the United States Supreme Court decided that undocumented migrant workers, who had been unduly dismissed because they had organized unions, did not have the right to back pay under the National Labor Relations Act.

For undocumented workers, this decision creates a clear legal exception to the guarantees granted to other workers; therefore, it contravenes the provisions of the international agreements that seek to ensure equal protection for migrant workers and it increases the vulnerability that distinguishes them from other groups in the general population.

The case cited involves Mr. Castro, a worker employed in the plant of the Hoffman Plastic Compounds company in Los Angeles, California. In 1989, when Mr. Castro helped organize a union to improve working conditions in the plant, he was dismissed. In January 1992, the National Labor Relations Board decided that Mr. Castro’s dismissal was illegal and ordered payment of back pay and his reinstatement.

In June 1993, during the hearing held before an administrative judge of the National Labor Relations Board to determine the amount of back pay, Mr. Castro indicated that he had never been legally admitted or authorized to work in the United States. As a result of this statement, the administrative judge decided that he could not grant payment of back pay, because this would conflict with the 1986 Immigration Control and Reform Act, which prohibits employers from knowingly employing undocumented workers, and employees from using false documents in order to seek employment.

In September 1998, the National Labor Relations Board revoked the decision of the administrative judge and indicated that the most effective way to promote immigration policies was to provide undocumented workers with the same guarantees and remedies as those granted to other employees under the National Labor Relations Act.

The National Labor Relations Board decided that, even though the undocumented worker did not have the right to be reinstated, he should receive back pay and the interest accrued for the three years’ lost work.

The United States Court of Appeal denied the request for review filed by Hoffman Plastic Compounds and reaffirmed the decision of the National Labor Relations Board.

On March 27, 2002, the United States Supreme Court considered the case and annulled the payment that was to be made to the worker.

The decision of the United States Supreme Court rejecting the payment to the worker stated that allowing the National Labor Relations Board to allow payment of back pay to illegal aliens would prejudice statutory prohibitions that were essential to the federal immigration policy. This would help individuals avoid the migratory authorities, pardon violations of immigration laws and encourage future violations.

The minority opinion of the United States Supreme Court indicated that the decision adopted in the Hoffman Plastic Compounds case would undermine labor legislation and encourage employers to hire undocumented workers. The dissenting opinion in the case established that payment of back pay is not contrary to the national immigration policy.

This dissenting opinion also indicated that, by failing to apply the labor legislation, those persons who most needed protection were left open to exploitation by employers. It added that the immigration law did not weaken or reduce legal protection, or limit the power to remedy unfair practices carried out against undocumented workers.

In its broadest sense, the decision of the United States Supreme Court implies that undocumented workers do not have the right to file proceedings to obtain payment of overtime, or to claim violations of the minimum wage or discrimination.

However, in two different cases related to violations of the minimum wage, a district court and a superior court decided that the migratory status of workers was not relevant in order to request payment of the minimum wage for the period of employment.

Several state authorities were mentioned which consider that the decision of the United States Supreme Court in the Hoffman Plastic Compounds case has a negative impact on the labor rights of migrant workers.

Most migrant workers are unwilling to exercise their rights and, on many occasions, do not report the abuses to which they are subjected.

Corporate associations also confirm the legal, social and economic vulnerability of undocumented workers. Recently, the Center for Labor Market Studies of Northwestern University conducted a study on the impact of migrants in the United States. The study director indicated that, over the last 100 years, the economy of the United States has become more dependent on migrant labor. He added that many of these new migrant workers, possibly half of them, are in the United States without legal documents, which means that the economy depends on individuals who are in a “legal no-man’s land.”

In summary, the decision of the United States Supreme Court in the Hoffman Plastic Compounds case may be seen as one of the latest additions to the legal structure that, directly or indirectly, has denied migrants the basic guarantees required to alleviate their social and economic vulnerability.
Many differences in treatment are derived directly from the undocumented status of workers and, at times, these differences also extend to documented migrants.

Harvard Immigration and Refugee Clinic of Greater Boston Legal Services and the Harvard Law School, the Working Group on Human Rights in the Americas of Harvard and Boston College Law Schools, and the Global Justice Center: In their written and oral statements, indicated that:

They are interested in this case and, in particular, in the labor rights of migrant workers in the Americas.

They endorse Mexico’s argument that the facts show that migrant workers do not enjoy universal human rights in fair and equitable conditions. The disparity between existing international norms that oprtect migrant workers and national discriminatory practices and legislation is the greatest challenge faced by migrant workers.

They proceeded to review the laws and practice of some American States in order to understand the disparity that exists between the rights of migrant workers and the relevant public policy.

Regarding laws and practices in Argentina:
According to the Argentine General Migration Act only migrants admitted as permanent residents enjoy all the civil rights guaranteed in the Constitution, including the right to work. The right to work granted to temporary or transitory migrants is more limited, while migrants who are in breach of the General Migrations Act do not have the right to work and may be detained and expelled.

It is almost impossible for many undocumented migrants to comply with the requirements for obtaining legal residence in Argentina established in Decree No. 1434/87, which stipulates that the Migrations Department may deny legal residence to migrants who: 1) entered the country avoiding migratory control; 2) remained in the country for more than 30 days, in violation of the law; or 3) work without the legal authorization of the Migrations Department. Likewise, the Ministry of the Interior has extensive discretionary powers to deny legal residence to migrants.

In the practice, because most migrants in Argentina have few resources, are not professionals and do not have Argentine relatives, the best way to regularize their migratory status is to present an employment contract entered into with an Argentine employer. However, as the regulations are very complex, many migrants are obliged to maintain their illegal status. Consequently, they have to accept precarious working conditions and very low salaries, and endure other abuse from their employers.

Regarding laws and practice in Brazil:
The 1988 Federal Constitution of Brazil guarantees the legitimacy of the rights embodied in the international treaties to which Brazil is a party. The Federal Constitution also establishes equal treatment for nationals and aliens.

Brazilian labor laws make no distinction between nationals and aliens. Undocumented workers have the right to receive wages and social benefits for work performed. Moreover, there are no provisions that limit access to justice because of the complainant’s nationality.

In practice, irregular workers in Brazil endure many difficulties, including long working hours and lower than minimum wages. Many irregular migrants never report abuses for fear of being deported. This fear also means that irregular migrants do not send their children to school, request driving licenses, buy goods, or visit their countries of origin.

Likewise, these workers have little information about their rights and can only claim them when they receive help from non-governmental organizations working with migrants.

Regarding laws and practice in Chile:
According to Chilean laws and regulations, national and foreign workers have equal labor rights.

Under Chilean labor legislation, an employment contract does not have to be in writing; however, the migratory law requires migrant workers to have a written contract drawn up before a public notary, in which the employer commits himself to paying the migrant's transport back to his country of origin on termination of the contract.

Migrant workers working in Chile without a written contract often receive very low wages, do not have access to social security benefits and can be dismissed at any time without monetary compensation. This situation is especially difficult for irregular migrant workers, because they fear being identified by the immigration authorities.

Likewise, given that irregular workers often do not possess national identity documents, they do not have access to many public services, including medical care and public housing.
The labor legislation does not expressly regulate the rights of workers without a contract, so the Labor Department and the Inspections Unit regulate their situation. Information on how these labor authorities interpret the law is not readily available to migrant workers. Chilean legislation on foreign workers has not been updated and provides them with very little protection, particularly in labor disputes.

Regarding laws and practice in the Dominican Republic:
The greatest obstacle to the protection of the rights of migrant workers in the Dominican Republic is the difficulty that Haitians face in establishing legal residence there. Once they have obtained their legal status, the law guarantees migrants the same civil rights as Dominicans. The law does not distinguish between citizens and documented aliens as regards their economic, social and cultural rights. Basic labor rights are guaranteed to all workers, regardless of whether or not they are legally resident in the country.

There are diverse problems in the workplace. For example, the minimum wage is insufficient to enjoy a decent life; the requirements for collective negotiation are unattainable; the fines imposed on employers are insufficient to prevent the violation of workers’ rights, and many health and security inspectors are corrupt.

Most Haitian migrant workers in the Dominican Republic face long working hours, low wages and lack of employment security. Their living conditions are inadequate. Most workers do not have drinking water, latrines, medical care or social services.

Haitian migrant workers have a very limited possibility of combating these unfair working conditions. They have to face political and social attitudes that are generally hostile. At the same time, most of these workers do not have access to legal aid and, consequently, to the labor courts.

The way that the migratory and citizenship laws are applied in the Dominican Republic contributes to perpetuating the permanent illegality of Haitians and Dominicans of Haitian descent. Moreover, given their poverty and illiteracy, it is very difficult for migrant workers to comply with the requirements to obtain temporary employment permits. The status of Haitian workers as irregular migrants affects their children, even those born in the Dominican Republic. The children of Haitians, who are born in the Dominican Republic, are not considered citizens, because Haitians are classified as aliens in transit. This situation has meant that Haitians are subject to deportation at any time and mass expulsions have been carried out in violation of due process.

For decades, the Dominican Republic has benefited from the cheap labor of Haitians and the State has developed a system that maintains this flow of migrant workers without taking the minimum measures to ensure their fundamental rights.

Regarding laws and practice in the United Mexican States:
Pursuant to Articles 1 and 33 of the Constitution, which refer to equal protection, constitutional labor rights must be guaranteed to all migrants.

According to its Constitution, Mexico is obliged to implement the bilateral and multilateral treaties on the labor rights of migrant workers to which it has acceded. These treaties ensure equal protection and non-discrimination, as well as other more specific guarantees.

The Federal Labor Act allows migrants to work legally in Mexico as visitors. However, there are professional restrictions on certain categories of visitors; these categories include most migrant workers from Central America, who are usually less qualified. Therefore, workers from Central America can only enter Mexico legally under the “Migratory Form for Agricultural Visitors” or under the “Migratory Form for Local Border Visitors.” Some provisions of the Federal Labor Act allow preferential treatment in contracting Mexican workers in relation to migrant workers.

The most common violations of the rights of migrant workers are: long working hours; inadequate living, health and transport conditions; below minimum wages; deductions from wages for food and housing; retention of wages and employment documents and racial discrimination. Owing to the bleak social and economic conditions in their countries of origin, may migratory agricultural workers are obliged to accept these abuses.

Although the “Migratory Form for Agricultural Visitors” and the “Migratory Form for Local Border Visitors” programs exist, and measures have been taken to protect the rights of migrant workers, these programs have been managed inadequately and have not prevented the abuse of workers. For example, the Local Arbitration and Conciliation Committees settle disputes between workers and employers, but the process is often slow. Also, many workers resort to the Committees without any legal representation and are summarily deported, even when their cases are pending.

Regarding laws and practice in the United States of America:
As a State party to the OAS Charter, the United States are subject to the obligations established by the American Declaration, which guarantee the right to work and to fair wages, as well as the right to organize unions and to receive equal treatment before the law. The Universal Declaration also guarantees the right to form trade unions and to equal remuneration for work of equal value. The International Covenant on Civil and Political Rights, to which the United States is a party, guarantees the right to equality before the law, without discrimination, and establishes the right to form trade unions. Lastly, the International Labor Organization conventions protect the labor rights of irregular workers.

Under existing labor legislation in the United States, irregular workers are recognized as “employees,” which gives them the right to the protection indicated in the principal federal labor laws. However, in practice they are not treated equally.

The National Labor Relations Act (NLRA) authorizes the National Labor Relations Board (NLRB) to establish remedies for employees who are victims of unfair labor practices. For example, in cases of unjustified dismissal, the remedy might consist of reinstatement and payment of back pay. In Hoffman Plastic Compounds v. National Labor Relations Board (2002), the United States Supreme Court decided that an irregular worker did not have the right to back pay, even when he had been dismissed for taking part in the organization of a union to obtain fair pay. In this case, the Supreme Court determined that “migratory policy had precedence over labor policy.” According to the Supreme Court’s decision in Sure–Tan v. National Labor Relations Board (1984), workers can be handed over to the Immigration and Naturalization Service even when the employer’s reason for doing so is unlawful retaliation against a worker who is carrying out an activity protected by the National Labor Relations Act. With these decisions, the Supreme Court has created inequality in the labor laws of the United States, based on migratory status.

Many irregular workers in the United States face serious problems owing to poor health and security conditions in the workplace, because they are paid less than the legal minimum. Migrant workers are also the target of discrimination and violence by third parties. Several States deny irregular workers access to education and medical care. Also, irregular workers who defend their rights run the risk of being reported to the Immigration and Naturalization Service. Undocumented migrants do not have access to legal aid, which makes it more difficult for workers to insist on their rights.

The difficult situation faced by irregular workers also affects migrant workers who are covered by the “H2A” and “H2B” visa programs. The rights of such workers are extremely restricted; for example, they are not covered by the law that establishes payment for overtime. In addition, the permit to be in the country legally is conditioned to remaining in a job with one employer, which restricts the worker’s possibility of insisting on his rights.

Lastly, approximately 32 million workers, including many migrants who provide domestic services or work on farms, are not protected by the provision of the National Labor Relations Act establishing the right to organize unions or by any state legislation.

Thomas Brill, of the Law Office of Sayre & Chavez: In his written and oral statements, indicated that:

In March 2002, the United States Supreme Court decided, in Hoffman Plastic Compounds v. National Labor Relations Board, that an undocumented worker did not have the right to the payment of lost wages, after being illegally dismissed for trying to exercise rights granted by the National Labor Relations Act.

Hoffman Plastic Compounds engaged José Castro in May 1988. In December 1988, Mr. Castro and other workers began a campaign to organize a union. In January 1989, the company dismissed Mr. Castro and three other workers for trying to create and join a union. In January 1992, the National Labor Relations Board ordered Hoffman Plastic Compounds to reinstate Mr. Castro and to give him the back pay he would have received, had it not been for the company’s decision to dismiss him because he was involved in union activities. The company refused to give Mr. Castro the back pay, because he admitted that he did not have an employment permit.

In September 1998, the National Labor Relations Board decided that Hoffman Plastic Compounds must pay Mr. Castro back pay corresponding to the period from his dismissal up until the date on which he admitted that he did not have the documentation corresponding to the employment permit. In its decision, the National Labor Relations Board said that “[t]he most effective way to adapt and promote the United States immigration policies […] is to provide the guarantees and remedies of the National Labor Relations Act to undocumented workers in the same way as to other workers.” The National Labor Relations Board ordered Hoffman Plastic Compounds to pay Mr. Castro the amount of US$66,951 (sixty-six thousand nine hundred and fifty-one United States dollars) for the concept of back pay. Hoffman Plastic Compounds refused to pay Mr. Castro and filed an appeal. In 2001, the Federal Appeals Court confirmed the decision of the National Labor Relations Board and Hoffman Plastic Compounds filed an appeal before the United States Supreme Court.

In its decision of March 2002, the Supreme Court revoked the decisions of the Appeals Court and the National Labor Relations Board. It denied Mr. Castro’s request for back pay and stated that, in the case of irregular workers who are dismissed for carrying out union-related activities, the prohibition to work without an authorization contained in the immigration legislation prevailed over the right to establish and join a union.

The National Employment Law Project, an American non-profit agency that examined the effect of the decision in the Hoffman Plastic Compounds case, determined that, as of that decision, employers have tried to deteriorate further the rights of irregular workers in the United States.

Many employers have infringed the rights of their employees since the decision in the Hoffman Plastic Compounds case was published. Indeed, employers can argue that irregular workers cannot file a complaint with the justice system when they are discriminated against or when their right to the minimum salary is violated. Clearly, the decision in the Hoffman Plastic Compounds case has led employers to discriminate against their irregular workers, arguing that the latter have no right to take legal action when their labor rights are violated. Thus, engaging irregular workers has been encouraged, because they are cheaper for the employer, and so as not to employ citizens or residents who can demand the protection of their rights before the courts.

However, it is important to note that the decision in the Hoffman Plastic Compounds case was not adopted unanimously by the United States Supreme Court, but by a majority of 5 votes to 4; the author of the dissenting opinion was Judge Breyer. He indicated that allowing irregular migrants access to the same legal remedies as citizens was the only way to ensure that migrants’ rights were protected. Judge Breyer carefully examined the possible impact of the decision on irregular workers and stated that if undocumented workers could not receive back pay when they were illegally dismissed, employers would dismiss such workers when they tried to establish trade unions, because there would be no consequences for the employer, at least the first time he used this method.

Likewise, as Judge Breyer stated, there is no provision in the United States immigration legislation that prohibits the National Labor Relations Board from allowing irregular workers to file remedies or actions when their rights are violated. However, the majority opinion of the United States Supreme Court eliminated the possibility that an irregular worker could file a claim for back pay before the courts, based on the alleged conflict between the National Labor Relations Act and the 1986 Immigration Reform and Control Act.

Both the National Labor Relations Board and the Supreme Court approached the Hoffman Plastic Compounds case as one that required a balance between labor legislation and immigration legislation. The National Labor Relations Board and the four judges of the Supreme Court in the minority gave priority to labor laws, while the five judges who comprised the majority granted priority to immigration laws.

In their decisions, the National Labor Relations Board and the Supreme Court did not take international human rights law and the norms of international labor law into consideration. Nor did they consider the obligations of the United States, pursuant to international law, to “ensure, in cooperation with the United Nations, the universal and effective respect for the fundamental rights and freedoms of man.”

In summary, the decision in the Hoffman Plastic Compounds case denies a group of workers their inherent labor rights that have been recognized by the international community.

One of the principal entities that has referred to the topic of human rights is the Organization of American States (OAS). The United States and Mexico are two of the 35 States parties actively involved in the OAS administration and, in theory, they adhere to the general principles and standards established by this international organization.

In this respect, it is important to cite Articles 3(l) and 17 of the OAS Charter, which refer to equality and non-discrimination. These principles are also mentioned in the American Declaration.

However, Mexico has not requested the Court to examine the United States immigration legislation. The right of each State to establish immigration rules is not questioned. Nevertheless, when the legislators of any specific State establish policies that discriminate against certain categories of workers in the labor market, it can have a devastating result on the protection of human rights. Fundamental human rights must prevail over the objective of preventing certain workers from enjoying the benefits granted by law.

For the above reasons, it is considered that the recent decision of the United States Supreme Court in Hoffman Plastic Compounds v. National Labor Relations Board creates a system that violates international law.

Labor, Civil Rights and Immigrants´ Rights Organizations in the United States of America: In their written and oral statements, they stated that:

The brief was prepared in representation of 50 civil rights, labor and immigrant organizations in the United States.

Migrant workers in the United States are among those workers who receive the lowest wages and most unfair treatment. Attempts by organizations to protect the rights of migrants, including “unauthorized” workers, have been obstructed by United States laws that discriminate based on the status of alien and migrant and, above all, owing to the decision of the United States Supreme Court in Hoffman Plastic Compounds v. National Labor Relations Board. Moreover, federal and state labor legislation violate international human rights law, which is obligatory for the United States. There is an urgent need for strong regional standards for the protection of migrant workers.

The expression “unauthorized worker” is used to describe migrant workers who are not authorized to be employed legally in the United States. This group includes workers who, for different reasons, are legally in the United States but are not authorized to work. The expression “undocumented” migrant is used to describe migrants whose presence in the United States is illegal. These workers form a subgroup of the migrant population that is not authorized to work. Most decisions taken by the courts are based on the authorization to work.

The United States has the largest migrant population in the world. For the purposes of this brief, the figure of 5.3 million persons (an approximate calculation of the total number of undocumented workers in the United States), will be sufficient to establish that this population represents a sizeable economic factor and an issue of political and human concern. Undocumented workers perform most of their work in sectors characterized by low salaries and high risk.

The practice of threatening migrant workers with reporting them to the Immigration and Naturalization Service (INS), in order to limit the exercise of their labor rights, has been common for many years and has not decreased since the decision in Hoffman Plastic Compounds v. National Labor Relations Board.

Penalties for employers who hire “unauthorized” workers are ineffective in the United States. The 1986 Immigration Reform and Control Act (IRCA) establishes that an employer must verify the identity and eligibility of the personnel he engages. However, the law allows employers to review the documents superficially. Employers have very little reason to fear that the Immigration and Naturalization Service will penalize them for engaging undocumented migrants; rather, they see this as a legitimate decision that saves them money. Even when employers break the law, the penalties and fines they receive are low and infrequent. Therefore, under current legislation, employers can engage “unauthorized” workers, benefit from them and threaten to report them to the Immigration and Naturalization Service, without fear of possible Government action.

Some migrant workers, particularly those who are “unauthorized”, are expressly excluded from the possibility of receiving certain reparations that are available to United States citizens. For examples in the Hoffman Plastic Compounds case, the United States Supreme Court decided that “unauthorized” workers could not receive back pay following a dismissal in reprisal for union activities, which is illegal under by the National Labor Relations Act that protects the right to organize unions and negotiate collectively. The Equal Employment Opportunity Commission (EEOC), the governmental agency that applies most of the federal labor laws on discrimination, has indicated that it is reviewing the practice of ordering payment of back pay to undocumented workers in light of the decision in the Hoffman Plastic Compounds case.

Lastly, the decision in the Hoffman Plastic Compounds case leaves intact the right to a minimum wage and the payment of overtime, under the Fair Labor Standards Act, because it referred only to the payment of back pay for work that had not been performed. However, the US Department of Labor, the federal agency responsible for applying the Fair Labor Standards Act, has not defined its opinion on the right of “unauthorized” migrants to payment of back pay arising from dismissals for reprisals, and has said that “it is still considering the effect of the Hoffman [Plastic Compounds] case on this reparation.”

Even before the Hoffman Plastic Compounds case, some United States laws discriminated explicitly against workers in certain migratory categories, including “unauthorized” workers and those who held specific types of visas. In most states, “unauthorized” workers have the right to receive compensation for occupational accidents or incapacity. In general, such compensation is regulated by state legislation and this varies in each state. Workers usually receive medical expenses, a partial reimbursement of their salaries, pensions, benefits in case of death and, at times, training for new employment. While the legislation on compensations in almost all the states applies to “unauthorized” workers, the laws of the state of Wyoming explicitly exclude them from the benefits of compensation, while other judicial decisions and provisions restrict payment of compensation for factors such as rehabilitation, death and back pay.

Workers included in the H-2A visa program (for agricultural employment), who are mostly from Mexico, are denied many basic federal labor measures protection. They are excluded from the protection of the Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA), the principal labor act regulating agricultural workers. Therefore, their employer is not controlled by the United States Labor Department. In addition, the permit for H-2A workers to remain l