The Assertion of Subjective Rights for Migrant Workers

© Springer International Publishing Switzerland 2015
Norman Weiß and Jean-Marc Thouvenin (eds.)The Influence of Human Rights on International Law10.1007/978-3-319-12021-8_13

13. The Assertion of Subjective Rights for Migrant Workers

Camille Papinot 

University Paris West Nanterre La Défense, Nanterre, France



Camille Papinot

13.1 Introduction

In 1927, Louis Varlez wrote that “the study of international law on migration (expression approved by the author) shows that there is a very strong and fertil regulatory activity”.1 Indeed international migration allows to focus on the evolutions of international law and represent a challenge for the field.

Surely, the assertion of individual’s rights and duties in the international legal order has been slow and progressive (LaGrand case, 2001).2 But strikingly, one of the first international rules concerning individual treatment by States concerned foreigners. As Driscoll D. J. pointed out, the traditional theory of exclusion of human rights from international law—as they were considered as pertaining to the so-called reserved or exclusive domain3—“suffered some exceptions, and the most notable was probably concerning the duty for States to respect some minimum rules on the legal regime applicable to foreigners.4 As a matter of fact, between the nineteenth and the twentieth centuries, States were considered to be liable for damages caused to foreigners even if, at the same time, international law was supposed to recognize only States—and surely not foreigners—as subjects of international law.5 As a consequence, if the violation of the “minimum standard of treatment” benefitting foreigners was accepted as a cause of international responsibility of States, which generally had to pay a financial compensation, this compensation was owed not to the injured person itself6 but to the State of the injured person.

The focus of this study, “migrant workers,” must be précised. Even if some authors mention an “international law on migration”7 as if this was a coherent branch of international law, the choice to focus specifically on migrant workers is justified by the fragmented approach of international law regarding migrant people and, consequently, the need for a clarification. Under article 11 of ILO convention no 97,8 article 11 of ILO convention no 143,9 and article 1 of Council of Europe Convention of 1977, a migrant worker “means a person who migrates or who has migrated from one country to another with a view to being employed otherwise than on his own account and includes any person regularly admitted as a migrant worker.” This definition excludes independent workers, other categories of migrants allowed to work (refugees, students), and irregular migrants (who sometimes can be regularized and then become migrant workers in the sense given above).

If all migrants are not workers, this is indeed the case that migrant workers constitute a huge part of the migrant people and that they are generally in a very fragile position. In this regard, the International Labor Organization (ILO) established that in 2010 there were 214 million of international migrant people (3 % of global population).10 Half of them were workers, 15 % irregulars.11 This phenomenon has probably many reasons. One of them is that trade and investments liberalization has been accompanied by the break of production process, linking products and labor markets of developing and developed countries. Economic openness reached to the creation of production centers, which, stimulated by international competition, became attractive destinations for work force migration.12 These migrants are in a very vulnerable situation because they decide mainly to emigrate for economic reasons and often accept work in worse conditions than national workers. They usually have no information on living conditions and labor legislation in the host country. So it is very difficult for them to have their rights represented.

Despite recent debates on the contribution of migrations to the development of home and destination countries,13 international dialogue on foreign workers protection14 remains complicated as the interests of concerned States are often contradictory. For home countries, it is proved that emigrants represent a source of income, and so they try to obtain a decent treatment at work for their nationals abroad, a protection of commodities acquired, and they seek to avoid arbitrary and massive expulsions. Host countries, for their part, have a tendency to open only some activities to foreigners on the basis of market needs and to protect the labor market by closing their boundaries specifically in periods of economic crisis.15 Moreover, they tend to consider that the admission and treatment of foreigners still pertain to their “exclusive domain” and are therefore quite reluctant to any international legislation in this regard.

Indeed, the inherent statute of being a “foreigner” of a “migrant worker,” meaning a person who is not a national, has for long limited any positive evolution of international law for this category of person—beyond the traditional minimum standard rule. But the “worker” quality16 of the migrant workers has been the starting point for the development of a protective international regulation.17 To put it in a nutshell, work has been a framework for rights assertion, and the improvement thereof has also benefited migrant workers. As is well known, in the twentieth century, developing and developed countries began to introduce social rules in their domestic law, as well as in international law, and trade unions’ actions allowed workers to get individual and collective rights at work. At an international level, the ILO created in 1919 paid a great attention to the definition of these rights. Apart from bilateral agreements that are the oldest and main source of rights (we will not study these agreements here), steps have been taken on the multilateral field with the adoption of two ILO conventions: Convention no 97 on migrant workers of 1949 and Convention no 143 concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers. Another convention has been adopted more recently at the UN level, the New York Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990).18 At the regional level, the rise of European Union law is also a good example of improvement of foreign workers protection.

But labor law is not the only source of rights for migrant workers. Obviously, the development of international human rights law, and its coverage of all people, including migrant workers, offers a complement to social rules applicable to migrants workers and finally promotes the emergence of a more comprehensive migrants workers’ international legal status.

The specific purpose of this study is to show how the development of a legal personality for migrant workers, a vulnerable category of people whose protection by international law is very progressive, strengthens the emergence of the international personality of individuals. To this end, the complementarity between international social rules and international human rights rules regarding the assertion of a legal status for foreign workers will be discussed (Sect. 13.2). Then it will be shown how international human rights law comes to reinforce the justiciability of migrant workers’ rights (Sect. 13.3).

13.2 Complementarity Between International Social Law and International Human Rights Law for the Assertion of a Legal Status of the Migrant Worker

It must be stressed that international cooperation focuses only on the workers’ conditions of treatment when they are already in a foreign territory, never on their access to the said foreign territory, which always needs the receiving State’s prior authorization. Of course, this authorization can be granted under a general framework established by a bilateral or regional agreement concluded by sovereign States under the cover of a reciprocal approach, but the principle of freedom of a sovereign State for the admittance or not of an alien on its territory has never been put into question.19 This being said, the actual legal status of migrant workers is based on different sources (treaties, customs), divided into different branches of international law. According to Richard B. Lillich, “the foreigner status in international law can be compared with a big puzzle which parts have been appearing over time, but the final number is still uncertain, that’s why the overall picture is to be invented.”20 We will not study bilateral agreements, which are the oldest source of this law,21 but rather we will focus on multilateral ones. Generally, this status is inspired by, and elaborated from, the principle of nondiscrimination, which means that it is forbidden to distinguish, for the benefit of subjective rights, between people on the basis of some criteria.22 The nondiscrimination principle is reflected in the rights at work (this is the “social” aspect) (Sect. 13.2.1) and in the rights regarding the status of migrant workers as foreigners (this is the “human rights” aspect) (Sect. 13.2.2).

13.2.1 The Assertion of an Equality of Treatment at Work

The main contribution of specific agreements on migrant workers’ protection at work is to guaranty the equality of treatment between national and foreign workers.23 They reflect a classical approach of international law under which equality of treatment is asserted only for a list of rights at work (equality for employment and remuneration, right to health at work, trade union freedom, right to social security). Other conventions nonspecific to migrant workers but aiming at guarantying a right to certain groups of workers, or protecting these groups, are also applicable to migrant workers (ILO Convention no 189 of 2011 on domestic work or ILO convention no 87 of 1948 on freedom of association). All in all, this is putting in force the national treatment principle. According to some authors, “the national treatment consists in the assertion by international law that foreigners have to be protected only against discrimination and can only claim equality with nationals for the application of national law.”24 This nondiscrimination principle is not always respected, depending on historical periods that can be either favorable or discriminatory for migrant workers.25

The main limit to this national treatment principle is that the level of the protection depends on the quality of the laws of the host country. Indeed, equality of treatment with nationals supposes to refer to the receiving State’s legislation. This margin left to the expression of sovereignty by international labor rules is a classical approach for the ILO, which very rarely defines in detail the substantial rights of workers (it does so, for example, concerning the prohibition of forced work or the worst forms of child labor). The ILO generally tries to harmonize working conditions without defining the right in substance.26 Consequently, at domestic level, ideological, political, and economic considerations affect the evolution of the migrant worker status, as well as, more generally, worker status. These considerations also have some influence on the international level because they determine States’ participation in international protective norms.

Nevertheless, one can question whether there exist supportive factors for a minimum treatment for all workers, including migrant workers. To this end, ILO has developed the concept of “fundamental rights at work” and the concept of “decent work.” According to the Declaration on Fundamental Principles and Rights at Work of 18 June 1998, ILO has considered the existence of four fundamental rights: the right to collective bargaining, the prohibition of forced work, the abolition of child labor, and the prohibition of discrimination in terms of employment and occupation. The Declaration also creates a monitoring mechanism.27 The Agenda for Decent Work is a program adopted in 1999, which aims at creating jobs, guarantying rights at work, extending social protection, and promoting social dialogue. Both texts are nonbinding,28 and this is why it would therefore be premature to consider that a minimum treatment for workers currently exists. However, the importance of the soft law should not be understated, particularly in this tripartite organization that is ILO, because it constitutes a positive framework for a dynamical promotion of rights at work. Furthermore, some courts have recently recognized the customary aspect of fundamental social rights.29

As regards the employment relationship, international law only adopts a regulatory framework for the exercise of the exclusive jurisdiction by the host State. The latter is still free to choose the substantial applicable rules.

13.2.2 The Indiscriminate Protection of the Migrant Worker as “Individual”

The development of international norms protecting human rights has had an important impact on the structure of classical international law and thus on principles applicable to foreigners.30 According to some authors, the place occupied by international human rights law does even challenge the traditional approach of foreigner status in international law. Indeed, the notion of “individual,” and the rights attached to any individual, questions the distinction between national and alien.31 For Vincent Chétail, the development of international human rights law appears like a synthesis of the theory of assimilation of the foreigner to the national and the theory of the minimum treatment standard. Indeed, the human rights law asserts the principle of equality of treatment between nationals and foreigners while ensuring that this minimum is guaranteed by international law. Many authors consider that the law for foreigners will disappear to blend into international law on human rights, because human rights require State to respect the rights of all the individuals under their jurisdiction.32

Some categories of foreigner clearly benefit from the minimum standard theory, in particular diplomatic or consular agents, or some of their activities (taxation, flows of capital).33 But beyond these specific regimes, Mr. Virally tried to identify what could be the hard core of fundamental rights that foreigners could claim for. According to the author, “the minimum standard […] includes the respect of essential freedoms : freedoms of the individuals, the property right, duly acquired rights, the safety of people and goods, and an impartial system of juridical guaranties, in particular judiciary ones, accessible to foreigners, enabling to obtain justice.”34 But the appropriation of the law for foreigners for the time being remains a tendency that is not totally finished.35 The New York Convention adopted by the UN represents the main step for the apprehension of the migrant workers question by human rights. It represents a summary of previous texts and studies made by the UN. It also reinforces the juridical framework for migrant workers’ protection,36 because it takes into account the whole migratory process.

In view of the current regional and universal trends on migrant workers, we can divide the rights they benefit from in two categories, “unconditional” rights, on one hand, and “conditional” rights, on the other hand.37 Unconditional rights can be defined as individual rights, identified as necessary for the respect of their dignity, not subject to condition of nationality and not available for the legislator.38 This concept is linked to the minimum treatment standard. This category of rights, which could be seen as irreductible, is more easily admitted for civil and political rights39 than for economic, social, and cultural rights that programmatic aspect is still often argued.40

Conditional rights for their part, as the name suggests, presuppose to fulfill a condition for their benefit. This condition can be the nationality of the foreigner, which determines, for example, its right to vote, which is admitted in certain regional systems. But we will leave aside this question, which concerns mainly foreigners having the resident status. In general, migrant workers do not benefit from this right. Another condition is the regularity of the stay, which can be a trigger for the benefit of some rights granted in some places. In fact, as he is defined by international law, a migrant worker is always in a regular situation—if he is not, he is not a “migrant worker” considered as such by international law, but the rights granted to migrant workers vary from place to place. For example, migrant workers can have the right to family reunification that allows a foreigner—living regularly on a territory—to be joined by his spouse and his minor children, as established by the principle of respect for private and family life. The New York Convention of 1990, at article 44, encourages States to grant the right to family reunification, but it is recognized only in Europe on the basis of article 8 of the European Convention on Human Rights. But even in Europe this right is not absolute41 because it presupposes to fulfill conditions of income and form of housing.

As can be seen, international human rights law has reinforced the migrant workers’ rights deriving from international social law, guarantying, to a limited extent, other substantial rights linked to the stay and not linked to the employment relationship. It is more clearly at the procedural level that international human rights law comes to reinforce their status by offering them legal remedies in the international legal order.

13.3 International Human Rights Law and the Justiciability of Migrant Workers’ Rights

The international legal personality of individuals cannot only be analyzed as the ability to be recipient of rights and duties in the international legal order but also as the ability to claim the breach of these rights.42 Diplomatic protection has still a role to play, because the right of individual petition is not always recognized in international instruments. However, this mechanism tends to be marginalized with the multiplication of legal remedies that can be used by migrant workers, before domestic and regional courts.43 Although the right of individual petition before domestic courts is guaranteed in specific or nonspecific conventions concerning migrant workers, we will focus on international legal remedies. In this respect, International Social Law and International Human Rights Law offer complementary legal remedies (Sect. 13.3.1), while civil and political rights reinforce the justiciability of the social rights of migrant workers (Sect. 13.3.2).

13.3.1 A Complementarity of Legal Remedies

The New York Convention of 1990 is the seventh UN Convention that creates a control mechanism via the establishment of a committee.44

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