Undocumented Migrants and the Failures of Universal Individualism

By Ramji-Nogales, Jaya | Vanderbilt Journal of Transnational Law, May 2014 | Go to article overview

Undocumented Migrants and the Failures of Universal Individualism


Ramji-Nogales, Jaya, Vanderbilt Journal of Transnational Law


3. Nondiscrimination Based on Immigration Status

Though international human rights law protects undocumented migrants from discrimination on numerous grounds, the right to nondiscrimination based on immigration status is limited. Yet undocumented migrants face discrimination precisely because they do not have lawful immigration status. This marker of vulnerability enables employers, landlords, hospitals, and other social service providers to exclude migrants from fair treatment, protection, and benefits on the basis of their immigration status. Undocumented migrants can receive unequal pay because they are not authorized to work, can have their housing applications rejected for a lack of official identity documentation, can be refused health care because they are ineligible for national health insurance programs, and can be excluded from pension and welfare programs. (115) Immigration status also authorizes states to keep undocumented migrants outside of the voting polity. (116) While this might seem an obvious sovereign right, it is not a foregone conclusion that migrants with substantial community ties should be any less entitled to vote than citizens. If we free our imagination from the sovereignty paradigm, political community might be bounded along social ties rather than physical borders.

Though nondiscrimination is one of its foundational rights, the ICCPR does not explicitly prohibit discrimination based on immigration status. (117) The ICCPR contains two clauses enumerating the right to nondiscrimination based on numerous grounds, including race and national origin. Neither includes immigration status or even nationality in its list of protected statuses. (118) In fact, the drafters of the ICCPR specifically excluded nationality from the grounds of nondiscrimination. (119) The treaty drafters appear to have been concerned about being required to extend certain civic, political, and property rights to noncitizens. (120) Rather than crafting a narrow exception based on these concerns, they created a human rights treaty that permits discrimination based on immigration status or nationality.

Both nondiscrimination provisions include a catch-all "other status" provision that might have been interpreted to include immigration status. The UN Human Rights Committee has not used these provisions to extend the grounds of nondiscrimination to protect undocumented migrants. Indeed, the language of the Committee's General Comment on the Position of Aliens under the ICCPR could be read to exclude undocumented migrants from its protections: "[O]nce aliens are allowed to enter the territory of a State party they are entitled to the rights set out in the Covenant." (121)

Similarly, the Migrant Worker Convention contains no explicit prohibition on discrimination based on immigration status. (122) Indeed, the treaty delineates certain rights--including the rights to family unity; liberty of movement; trade union rights; participation in public affairs; equality of treatment as to education, housing, and other social services; and freedom from double taxation--as inapplicable to undocumented migrants. (123)

In the same vein, the International Labor Organization (ILO)'s 1949 Migration for Employment Convention offers protection against discrimination relating to employment and social security only to migrants lawfully in the territory of the State Party. (124) European regional human rights law, in the form of the European Social Charter, is similarly narrow in its protections of undocumented migrants. (125) While the ILO's 1975 Migrant Workers Convention provides for equal treatment for the undocumented with respect to rights arising out of past employment, it offers no right to equal opportunity and treatment with respect to employment for workers unlawfully present. (126)

The story is a bit more complicated when it comes to the ICESCR and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). …

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Undocumented Migrants and the Failures of Universal Individualism
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