Why Human Rights Fail to Protect Undocumented Migrants

2010 ◽  
Vol 12 (2) ◽  
pp. 241-272 ◽  
Author(s):  
Gregor Noll
Keyword(s):  
Human Rights ◽  
Migrant Workers ◽  
Migrant Worker ◽  
Political Community ◽  
Political Activity ◽  
Undocumented Migrants ◽  
Undocumented Migrant ◽  
Labour Unions ◽  
Degree Of Protection ◽  
Rights Of The Child

AbstractIn this article, I depart from the factual difficulties of undocumented migrants to access a state’s protection mechanisms for avowedly universal human rights. I relate this aporia to two competing conceptions of territorial jurisdictions. Drawing on the Convention on the Rights of the Child and the Migrant Workers Convention, I separate the sphere of the political community (the polis) and that of the house-hold (the oikos) in developing a political theory of undocumented migration. It rests two central tenets: one is a tributary transaction between sending state and host state, in the course of which the undocumented migrant worker is offered without conditions attaching, yet with the hope of remittances flowing in return. This offering relates to the oikos, which makes available a limited degree of protection under labour law. The second is a contractual form of submission by the undocumented migrant worker, which is structurally analogous to the master-slave relationship developed in Hobbes’ defense of war slavery. This is related to the polis, which denies all meaningful political activity to the undocumented migrant (as reflected in the denied right to found labour unions). Finally, drawing on Werner Hamacher’s work, I analyse how human rights are intrinsically related to a position of privacy, which escalates into a form of isolation under the structures producing undocumented migrants.

The Employment Contract Revisited. Undocumented Migrant Workers and the Intersection between International Standards, Immigration Policy and Employment Law

2010 ◽  
Vol 12 (2) ◽  
pp. 193-214 ◽  
Author(s):  
Andreas Inghammar
Keyword(s):  
Migrant Workers ◽  
Migrant Worker ◽  
International Standards ◽  
Solid Base ◽  
Access To Justice ◽  
Undocumented Migrants ◽  
Undocumented Migrant ◽  
Legal Representation ◽  
Employment Contract ◽  
Legal Standards

AbstractThis article considers recent legal developments on undocumented migrant workers, finds the acceptance of international legal standards unsatisfactory and argues that the private law rights derived from the “semi-legal” employment contract between the employer and the undocumented migrant worker generates a solid base for significant legal claims. It further monitors the promotion of the position of the undocumented migrant workers under recent EU law and calls for a refocusing on the employment contract in the reading of a relevant EC Directive, with a particular emphasis on the issue of access to justice for the migrant workers. The increased number of undocumented migrants who leave their countries of origin for reasons outside the scope of the asylum procedure, as well as the circumstances under which this migration is undertaken and the working conditions of these individuals in the host countries, have brought about legal activities from governments and institutions such as the EU. The aim has in general been to establish sanctions against employers of undocumented migrant workers, but a shift towards a compensatory, employee protective, attitude has recently emerged, both in EU legislation and in a broader perspective in US case law. The article concludes that such a development must be massively supported in relation to access to justice in order to fulfill the ambition. The poor legal position of the undocumented migrant workers is significantly connected to issues of legal representation, trade union participation and the threat of repatriation.

Part II: Interpreting the Convention: Human Rights, State Sovereignty and the Protection of Undocumented Migrants under the International Migrant Workers Convention

1991 ◽  
Vol 25 (4) ◽  
pp. 737-770 ◽  
Author(s):  
Linda S. Bosniak
Keyword(s):  
Human Rights ◽  
Migrant Workers ◽  
Legal Protection ◽  
Undocumented Migrants ◽  
International Convention ◽  
Irregular Migrants ◽  
Territorial Sovereignty ◽  
National Differences ◽  
Appropriate Treatment ◽  
The One

Pursuant to the international legal principle of territorial sovereignty, states possess extensive authority to control the ingress of foreigners into their territory, but the presence of tens of millions of irregular migrants around the world reveals that states often fail to exercise such control in practice. As a result, international society is faced with the need to establish standards of appropriate treatment for irregular migrants who are present within the territory of receiving states. In view of the precarious social condition of these individuals, the need for human rights protections in this context is particularly urgent, but the interests of states in territorial sovereignty are also at stake. The International Convention seeks to accommodate these competing concerns by providing human rights protections to undocumented migrants which are substantial but less extensive than those provided to documented migrants, and through ensuring states’ continuing authority in the spheres of immigration control and national “membership policy.” The article concludes that, despite the unmistakable normative value of many of the Convention's protective provisions, the Convention's ability to substantially ameliorate the human rights situation of irregular migrants is significantly constrained by its overriding commitment to the norms and structures of sovereign statehood. [W]hile the international legal protection afforded to aliens is on [the] one hand an inchoate expression of human similarities which cannot be denied, it is simultaneously an expression of national differences which are equally beyond question. (Morgan, 1988:142)

The experiences of health professionals while monitoring a hunger strike among undocumented migrant workers in Brussels.

2020 ◽  
Author(s):  
Rita Vanobberghen ◽  
Fred Louckx ◽  
Dirk Devroey ◽  
Jan Vandevoorde
Keyword(s):  
Migrant Workers ◽  
Traumatic Stress ◽  
Health Professionals ◽  
Secondary Traumatic Stress ◽  
Undocumented Migrants ◽  
Undocumented Migrant ◽  
Hunger Strike ◽  
Sick People ◽  
Migration Law

Abstract Background In 2014, in Brussels, a group of undocumented migrant workers started a hunger strike. A loophole in Belgian migration law allows very sick people to stay in the country to recuperate. Undocumented migrants jeopardize their health to be able to obtain a temporary permit and a way out of misery. The monitoring of the hunger strike was done by young, committed but inexperienced health professionals.Methods At the end of the hunger strike, two focus groups were held to find out the dilemmas confronting the health professionals.Results Eighteen out of 29 health professionals participated. They mentioned their curiosity to gain new insights into living conditions among undocumented people and the reasons why they started the strike. They were puzzled by the paradox of wanting to die to get a better life and refusing medical advice. They wondered about their role and commitment as a caregiver. Some were deeply touched by the experience and reacted emotionally while others deepened their engagement. Symptoms of Secondary Traumatic Stress, such as re-experiencing and avoidance were observed. The participants themselves also proposed improvements to the monitoring. Conclusions Even though only a small number of health professionals were questioned, we detected a lot of preoccupations and contradictions in their reactions. To be able to process these a close follow-up and evaluation of the monitoring of a hunger strike is mandatory. We also propose that prevention, early detection and treatment of Secondary Traumatic Stress should become part of formal medical education.

scholarly journals Protección de las personas migrantes indocumentadas en España con arreglo al Derecho Internacional y Europeo de los derechos humanos = Protection of undocumented migrant persons in Spain under international and European human rights law

2017 ◽  
Vol 9 (2) ◽  
pp. 255
Author(s):  
Dorothy Estrada Tanck
Keyword(s):  
Human Rights ◽  
Legal Framework ◽  
International Human Rights Law ◽  
Undocumented Migrants ◽  
Human Rights Law ◽  
Undocumented Migrant ◽  
Legal Regime ◽  
International Human Rights ◽  
Derechos Humanos ◽  
The Eu

Resumen: Este artículo trata sobre el régimen jurídico de protección de las personas migrantes indocumentadas en España, realizando una cartografía integral de los instrumentos internacionales y europeos de derechos humanos que les resultan aplicables y contrastando dicho marco jurídico con la normatividad y la práctica en el país. El trabajo identifica de modo temático y casuístico los riesgos y vulnerabilidades que enfrentan las personas migrantes en España y en la UE, y los examina de modo crítico y a la vez propositivo a la luz de los principios de igualdad y no-discriminación, la jurisprudencia de los órganos de NU y del TEDH, así como de las herramientas protectoras del propio orden jurídico español.Palabras clave: migrantes, derecho internacional de los derechos humanos, derecho europeo de los derechos humanos, migrantes en España, vulnerabilidad.Abstract: This article addresses the legal regime of the protection of undocumented migrants in Spain, integrally mapping the international and European human rights instruments that are applicable to them and contrasting such legal framework with the normativity and practice in the country. It identifies in a thematic and casuistic way, the risks and vulnerabilities confronted by undocumented migrants in Spain and the EU, and examines them critically and at the same time constructively under the light of the principles of equality and non-discrimination, the jurisprudence of UN bodies and the ECHR, as well as the protective tools provided by the Spanish legal system itself.Keywords: migrants, international human rights law, European human rights law, migrants in Spain, vulnerability.

scholarly journals Fulfill the Basic Rights of Indonesian Migrant Workers' Children in the Human Rights Perspective

2020 ◽  
Vol 2 (2) ◽  
pp. 76-105
Author(s):  
Hijrah Lahaling
Keyword(s):  
Human Rights ◽  
Migrant Workers ◽  
Right To Health ◽  
Right To Education ◽  
Rights Of The Child ◽  
Basic Rights ◽  
The Republic ◽  
The Right

The fulfillment of the basic rights of children of Indonesian Migrant Workers (PMI) left by their parents to grow and develop has not been optimally fulfilled either physically, mentally, psychologically, or socially. The right to fulfill the children of Indonesian migrant workers includes the right to survival, the right to education and the right to health. Neglect of the fulfillment of these rights is not yet fully in accordance with the 1945 Constitution of the Republic of Indonesia, Convention on the Rights of the Child, Law No. 6 of 2012, and Law No. 35 of 2014. This will certainly endanger the welfare and survival of PMI children in accordance with the principles of human rights. This research aims to formulate the fulfillment of the basic rights of children of Indonesian migrant workers in accordance with the principles of human rights.

scholarly journals LEGAL PROTECTION TO THE INDONESIAN MIGRANT WORKERS IN THE PERSPECTIVE OF HUMAN RIGHTS

2020 ◽  
Vol 7 (3) ◽  
pp. 130-137
Author(s):  
Raden Muhammad Mihardi
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Migrant Workers ◽  
Migrant Worker ◽  
Legal Protection ◽  
Legal Issue ◽  
Protection Of Human Rights ◽  
United Nations Convention ◽  
Work Abroad ◽  
The Ideal

Purpose of the study: This research aims to describe legal issue related to the protection to Indonesian migrant workers who work abroad and to analyze the existence of migrant workers in Indonesia, viewed from human rights which must get legal protection in constitution and regulation of legal norm and implementation in the applicable legislation. Methodology: This research used the normative research methodology supported by empirical data from the document of institutional study. Main Findings: Research about the protection of human rights in Indonesian Migrant Worker sector is a certainty. It is guaranteed in the international documents (Declaration of Human Rights in the United Nations, Convention of United Nations on Ecosoc and ILO Convention) and national documents (1945 Constitution and Law of Indonesian Migrant Worker Protection). However, in the perspective of its implementation, it has complexity. The protection to Indonesian migrant workers involves many parties, central and regional rules, and culture. This research focuses on the context of Indonesian Migrant Worker protection in a country where they work from the perspective of human rights. This research has novelty since it captures and analyzes issue of Indonesian Migrant Worker in rules and empirical terms based on the database. Applications of this study: this study can be useful for Immigration is one of the instruments to support unity of family with different nationality background. Novelty/Originality of this study: The new in this study that may find the ideal concept of the treasury of jurisprudence, particularly for foreign citizens who legally get married with Indonesian citizens and ex-Indonesian citizens and children born from legitimate mixed marriage with double citizenship.  

scholarly journals Illegal Journey: The Indonesian Undocumented Migrant Workers to Malaysia

Populasi ◽  
2018 ◽  
Vol 25 (2) ◽  
pp. 24
Author(s):  
Ridwan Wahyudi
Keyword(s):  
Social Capital ◽  
Human Rights ◽  
Migrant Workers ◽  
Social Classes ◽  
Theory Approach ◽  
Undocumented Migrant ◽  
Ethnic Grouping ◽  
The Social ◽  
Grounded Theory Approach ◽  
Government Authority

The objective of this study is threefold. First, it uses fieldwork to explore the illegal journey of the Indonesian undocumented migrant workers, including all processes and interactions. Secondly, it identifies the substantive factors behind illegal influx into Malaysia. Thirdly, it draws out the implications from the illegal journey undertaken by them to Malaysia. This qualitative study applies the grounded theory approach. The result of this study shows that social capital within their network expands through various channels, particularly friendship, brotherhood, neighborhood, community and ethnic grouping. It also permeates strongly beyond government authority and regulation. They have constructed social classes among themselves. However, they have also been less able to get the social access because the absence of official documents deprives their human rights, and they are also blamed for social ills. Therefore, the regulation for both countries must recognize the rights, improvement governance, strengthen the integrity and curb corruption.

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