Advisory Opinion OC-18/03 - Organization of American States

Inter-American Court of Human Rights
Advisory Opinion OC-18/03 of September 17, 2003, Requested by the United Mexican States
Juridical Condition and Rights of the 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
relevanc