BOARD OF DIRECTORS
Contact: Kristina Zinnen Professor Constance de la Vega
Human Rights Advocates International Human Rights Clinic
kmzinnen@ University of San Francisco School of Law
415.994.0881 415.422.6752
To Protect the Human Rights of Migrant Women and Children,
National Labor Laws Must Not Discriminate on the Basis of Immigration Status
By Kristina Zinnen[1]
February 21, 2005
Commission on the Status of Women
49th Session
| |
HRA has consultative status, Category II, with the United Nations Economic and Social Council
I. Irregular Migrant Workers and the Beijing Declaration and Platform for Action
The Global Framework of the Beijing Declaration and Platform for Action (Beijing Platform) states that the "full realization of all human rights and fundamental freedoms of all women is essential for the empowerment of women."[2] In addressing Women and the Economy as a critical area of concern, the Beijing Platform emphasizes that "[w]omen migrant workers, including domestic workers, contribute to the economy of the sending country through their remittances and also to the economy of the receiving country through their participation in the labour force."[3] However, the Beijing Platform elaborates that "[t]hese trends have been characterized by low wages, little or no labour standards protection, poor working conditions, particularly with regard to women's occupational health and safety, low skill levels, and a lack of job security and social security, in both the formal and informal sectors." [4]
"Migrant female workers remain the least protected by labour and immigration laws."[5] The International Labour Organization (ILO) estimates there are 86 million migrant workers worldwide[6], earning more than US$100 billion annually.[7] A “migrant worker” is a person who is, or has been, “engaged in a remunerated activity in a State of which he or she is not a national.”[8] The ILO recognizes the right to organize as a fundamental human right.[9] Migrant workers are often denied access to legal services, health care, social security, and other health and safety protections.[10]
The Beijing Platform's Global Framework continues by stating that "[w]omen often have no choice but to take employment that lacks long-term job security or involves dangerous working conditions, to work in unprotected home-based production or to … enter the labour market in under-remunerated and undervalued jobs, seeking to improve their household income; [or]to migrate."[11] In the past two decades, more women have been migrating alone. This phenomenon, known as the feminization of migration, is the result of a greater demand for women in certain sectors. Women represent as much as 76% of the migrant labor force in some countries.[12] Although overall women were 48.8% of all migrants in 2000, up from 46% in 1960s, these figures do not illustrate the significant increase of women migrating alone.[13] This shift has been most dramatic in Asia, where an estimated flow of 800,000 Asian women workers migrate each year.[14]
The Global Framework states that "massive movements of people have profound consequences for family structures and well-being and have unequal consequences for women and men, including in many cases the sexual exploitation of women."[15] In addressing Women and Violence as a critical area of concern, the Beijing Platform emphasizes that "[s]ome groups of women, such as women migrant workers, are particularly vulnerable to violence."[16] When national labor laws discriminate against migrant workers in violation of international law, it encourages discrimination, slavery, arrests, exploitation, and abuse. Every year, an estimated 800,000 migrant women will be trafficked.[17]
II. The Impact of National Labor Laws on Irregular Women Migrant Workers
Despite international treaty obligations, discriminatory national labor legislation is having a detrimental effect worldwide on irregular workers. Women migrant workers are particularly vulnerable in the electronics sector in Malaysia, in the post-Hoffman United States, in the seasonal agriculture sector in Europe, and in the domestic sector in the Gulf States. The experiences of these women illustrate the critical need of member states to prohibit discrimination on the basis of immigration status with respect to national labor legislation irrespective of national immigration policy.
A. Malaysia
There are two million Indonesian migrant workers in Malaysia, at least one million of whom are undocumented.[18] Indonesians in Malaysia make up the largest irregular migration flow in Asia and globally are second only to Mexicans entering the United States.[19] More than one-third of these workers find jobs in manufacturing, especially in Malaysia’s prolific electronics industry.[20] The Malaysian government does not allow national unions in the electronics industry, effectively denying up to 720,000 Indonesian migrants the right to organize. Indonesian women also find jobs in domestic work.[21] Although working in degrading working conditions, these women must sign individual employment contracts that state they cannot belong to a union. With 23% of Indonesian migrants finding jobs in domestic work, up to 460,000 migrant women are denied the right to organize. [22]
On May 10, 2004, the governments of Indonesia and Malaysia signed a Memorandum of Understanding (MOU) between the two countries regarding their migrant workforce.[23] This MOU, which went into effect on August 10, 2004, prohibits migrant workers from joining trade unions and forming associations.[24] Moreover, the MOU excludes domestic workers, gives employers the right to hold workers’ passports, and lacks minimum labor standards.[25]
The situation is much worse for Malaysia’s irregular migrant workforce. In 2002, Malaysia conducted mass deportations of its illegal migrant workforce. [26] Before being deported, irregular migrants are sent to worker detention camps.[27] Living in harsh, overcrowded conditions, where food, clean water, and medical care are scarce, many migrants become ill or die.[28] In the detention camp in Nunukan, at least 64 irregular Indonesian workers and their children have died from dehydration, dysentery, or respiratory illness.[29] It is reported that Malaysian police sexually abused a 13-year-old Filipina girl during detention.[30] Other migrants left Malaysia willingly to escape stricter penalties under the Immigration Amendment Act of 2002, which included whipping, caning, and longer prison sentences for irregular migrants.[31] Malaysian Deputy Home Affairs Minister Datuk Tan Chai reported that 18,607 illegal migrants had been whipped as a penalty under this amendment by the end of 2004.[32] On March 1, 2005 the Malaysian government will launch another campaign to arrest and deport the nearly one million irregular Indonesian migrants.[33]
B. United States and U.S. Territories
In its 2002 case Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, the United States Supreme Court eliminated the traditional back pay remedy for undocumented workers whose rights have been violated under the National Labor Relations Act (NLRA).[34] The Court reasoned that awarding back pay to irregular workers was “foreclosed by federal immigration policy, as expressed by Congress in the Immigration Reform and Control Act of 1986.”[35] The Court claimed that irregular workers’ rights would still be protected under the NLRA through “cease and desist” orders requiring the employer to “post a notice to employees setting forth their rights under the NLRA.” [36] However, with no financial incentive for employers not to violate the NLRA or for workers to report NLRA violations, Hoffman effectively eliminates any legal bargaining rights for irregular workers while rewarding employers for violating both immigration and labor policy.[37] In his dissenting opinion, Justice Breyer reasoned, “in the absence of the back pay weapon, employers could conclude that they can violate the labor laws at least once with impunity. . . . Hence the backpay remedy is necessary; it helps make labor law enforcement credible; it makes clear that violating the labor laws will not pay.”[38]
Hoffman potentially affects approximately 5.5 million irregular workers.[39] The cease and desist order, the only remedy left to irregular workers, does not cure past violations, amounting to “one free pass” for employers.[40] Some employers have attempted to use Hoffman to deter migrants from asserting their rights.[41] Employers have argued that employees’ immigration status should be discoverable before a finding of an unfair labor practice.[42] Other employers have attempted to use Hoffman to prevent irregular migrants from voting in union elections.[43] The result is increased violations of the labor rights of migrant workers. In the meatpacking industry, where workers are in danger of losing a limb, employers frequently deny workers’ compensation to employees injured on the job, intimidate and fire workers who try to organize, and exploit workers’ immigrant status in order to keep them quiet about abuses.[44]
The chilling effect of Hoffman has extended beyond the scope of the NLRA. The Equal Employment Opportunity Commission rescinded its enforcement guidelines that allowed for the backpay remedy for irregular workers.[45] Employers have attempted to expand Hoffman to dismiss claims under Title VII of the Civil Rights Act, the Fair Labor Standards Act, the Americans With Disabilities Act, and common-law tort law.[46] Agricultural workers, not covered under the NLRA, have been victims of trafficking. Four New York farm labor contractors pled guilty to trafficking-related criminal charges for transporting migrant farmworkers in crowded vans from Arizona to New York, demanding smuggling fees, rent payments, transportation costs, and money for food.[47] With threats of deportation and no protection under the NLRA, migrant workers have no effective rights to freedom of association, organizing, or collective bargaining in the United States and U.S. territories, leading to further exploitation.[48]
C. Gulf States
Many women migrate to the Gulf States to work as domestic workers engaged in housekeeping, child care, and elder care. These workers are particularly vulnerable to human rights violations, due to the lack of coverage in labor legislation of domestic work, unchecked practices of unscrupulous recruitment agents, the withholding of passports of domestic workers, strict employee-tied residency rules, slavery-like working and living conditions, physical and verbal abuse, and sexual violence.[49]
Domestic workers are excluded from labor law in Jordan, Kuwait, Lebanon, Oman, Qatar, Saudi Arabia, and United Arab Emirates and are therefore not permitted to either found or belong to a trade union.[50] Domestic work is not fully recognized or valued as work, or, at best, is classified as ‘unskilled’ work.[51] These workers are denied any method of formal redress to poor working conditions in most of these countries, such as in Qatar, where domestic workers may not strike.[52] In the United Arab Emirates, domestics have no legal remedy to their mistreatment other than expulsion.[53]
With little employment benefits or trade union rights, women domestic workers are "invisible" and more vulnerable to exploitation and abuse.[54] In Kuwait, domestic workers, mainly women, are subject to prosecution if they leave their employers, who often confiscate their passports, and are frequently the victims of physical and sexual abuse.[55] Lebanon’s large population of Ethiopian migrant women workers suffer badly from their lack of legal protection. Many are held in conditions of near slavery, and some have even been killed.[56] In Saudi Arabia, there are numerous reports of abuse towards domestic migrant workers, including restrictions on movement, forced confinement, lack of food, physical and sexual assault, and murder. Some countries have prohibited their citizens from accepting work in Saudi Arabia.[57]
Foreign workers have restricted trade union rights in many of the Gulf States, including Jordan, Kuwait, Lebanon, Oman, Israel, Qatar, Saudi Arabia, Syria, United Arab Emirates, and Yemen, despite the large migrant workforces in these countries.[58] Foreign workers compose 85% of the workforce in the United Arab Emirates, 80% in Kuwait, 75% in Qatar, 60% in Saudi Arabia, and 50% of the workforce in Oman and over 90% of the Omani private sector.[59] In Kuwait, at least 100 workers are required to organize a trade union. Of these founding members, at least 15 workers must be of Kuwaiti nationality, restricting workers from organizing in the private sector as the majority of workers are migrants. Foreign workers must have resided in Kuwait for at least five years and must obtain a certificate of moral standing and good conduct before they are allowed to join trade unions as non-voting members, eliminating this option for irregular migrants. Less than 5% of the unionized workforce is foreign. Foreign workers are not permitted to run for any trade union leadership positions.[60] In Israel, Palestinians from the West Bank and Gaza Strip who work in Israel are not permitted to join Israeli trade unions, organize their own unions in Israel, or carry out Palestinian trade union activities in Israel.[61] In Qatar, migrant workers, dependent on their employers for their work permits, often fall victim to abuse from their employers.[62] In Saudi Arabia, salaries are determined based on nationality of the worker.[63] The Saudi Development Plan for 2000-2004 aimed to replace 471,000 expatriates with Saudi workers.[64] In Syria, only workers of Arab nationality can stand for election to trade union office.[65] In the United Arab Emirates, migrant workers risk expulsion if they try to organize trade unions or take strike action. One employer deported foreign workers for going on strike.[66] Garment workers from India, Pakistan, Sri Lanka, and the Philippines have to endure the worst conditions. The problems migrant workers face is compounded by a general limitation on trade union rights in many Gulf countries.[67]
D. European Union
With 30 million migrant workers, Europe is the region of the world that attracts the largest number of migrant workers and their families.[68] Nineteen million of these migrants work in the EU-15.[69] Although migrant workers are given labor law protection in most EU countries, these workers nevertheless face discrimination in practice. Migrants are employed in low-skilled jobs and labor-intensive sectors, where working conditions are poor.[70] Women make up 40% of seasonal agricultural workers in Germany, where trade unionists have reported these workers are “likely to be found sleeping in cars, barns or cellars, without toilets or access to water.”[71] Women far outnumber men in the informal economy, and are sometimes recruited through clandestine or criminal intermediaries employing slave-like practices.[72] The UK’s “gang masters” and Southern Italy’s “caporale” bill the farmers and set the wages for the agricultural workers, deducting transportation costs, food, and other administrative costs from the workers’ earnings.[73] In March 2004, Italian authorities broke up a network of small Chinese family-run companies near Florence that were employing children – some of whom were under 10 years old – in the textile and leather sectors. [74]
One statutory example of discrimination on the basis of immigration status with respect to national labor laws is occurring in Spain. The Basic Act on the Rights and Freedoms of Foreigners in Spain and their Social Integration, which entered into force in January 2001, restricted the right to freedom of association, right to organize, and the right to collective bargaining by stating that foreigners may exercise such rights and freedoms only “when they obtain authorization for their stay or residence in Spain.”[75] Trade unions and opposition political parties are currently challenging the Act in a case before the Constitutional Court.[76] Although Spanish workers’ confederations and trade unions have established information centers for foreign workers, many irregular migrants fear that joining a union would result in deportation or unemployment.[77] In spite of these regulations, mothers and young children, unaccompanied minors and pregnant women make the dangerous crossing each year from North Africa to Andalusia.[78] Those who survive the journey may end up living in plastic and wooden “chabolas,” with no running water or toilet facilities, and little to eat.[79]
III. Labor Rights for Irregular Workers under International Law
International and regional human rights instruments recognize the right of migrant workers to the right of freedom of association, right to organize, and the right to collective bargaining, irrespective of immigration status. National trade unions, often collaborating regionally, have begun to challenge violations of international law in regional and international tribunals.
A. Relevant International Law
The International Covenant on Economic, Social, and Cultural Rights (ICESCR), ratified by 149 state parties, entered into force on January 3, 1976.[80] The ICESCR states that everyone has a right to “form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned.”[81] The exercise of this right is subject only to restrictions based on national security, public safety, public health or morals, or the rights and freedoms of others.[82] Moreover, legislative measures may not be taken that would “prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in [the] Convention.”[83]
The International Covenant on Civil and Political Rights (ICCPR), ratified by 152 state parties, entered into force on March 23, 1976.[84] The ICCPR states that “[e]veryone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.”[85] Moreover, “[n]o restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.”[86]
The International Labour Organization (ILO), with 177 member states, was founded in 1919 and became the first specialized agency of the U.N. in 1949.[87] ILO standards in general cover all workers irrespective of nationality. Each member country is bound by these, whether or not they have ratified those Conventions, since freedom of association is taken to be a constitutional norm binding on countries by virtue of their membership in the organization.[88] All members, even if they have not ratified the Conventions in question, have an obligation to respect, promote, and realize the principles concerning fundamental rights that are the subject of those Conventions.[89] The primary ILO Conventions protecting the rights of migrant workers include 87 - Freedom of Association and Protection of the Right to Organise Convention adopted July 9, 1948, 97 – Migration for Employment Convention adopted July 1, 1949, 98 – Right to Organise and Collective Bargaining Convention adopted July 1, 1949, and 143 – Migrant Workers (Supplementary Provisions) Convention adopted June 24, 1975.[90]
The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Migrant Convention), ratified by 27 state parties, entered into force on July 1, 2003.[91] The Migrant Convention states that “[n]o migrant worker or member of his or her family shall be held in slavery or servitude.”[92] Moreover, migrants and their families have the right “to join freely any trade union” and “to seek the aid and assistance of any trade union” without any “restrictions . . . placed on the exercise of these rights.”[93]
Many regional human rights instruments also address the rights of migrant workers to freedom of association and collective bargaining regardless of immigration status. The European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) with 45 member states, states that “[e]veryone has the right to … freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”[94] No restrictions are placed on the exercise of this right, unless they are “necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.”[95] The African Charter on Human and Peoples’ Rights (African Charter), with 53 member states, asserts that “[e]very individual shall have the right to free association provided that he abides by the law.”[96] The American Convention on Human Rights (American Convention) states that “[e]veryone has the right to associate for … economic, labor, . . . or other purposes.”[97] The exercise of this right is subject only to restrictions based on national security, public safety, public health or morals, or the rights and freedoms of others.[98] The Charter of the Organization of American States (OAS) states that “workers … have the right to associate themselves freely for the defense and promotion of their interests, including the right to collective bargaining and the workers’ right to strike….”[99] Finally, the American Declaration of the Rights and Duties of Man (American Declaration) states that “[e]very person has the right to associate with others to promote, exercise and protect his legitimate interests of a political, economic, . . . professional, labor union or other nature.”[100]
B. Legal Challenges under International Law
In March 2001, The General Union of Workers of Spain filed a complaint with the ILO’s Committee on Freedom of Association against the Government of Spain in response to Spain’s Basic Act on the Rights and Freedoms of Foreigners in Spain and their Social Integration. [101] The complaint alleged the government’s [d]enial of the right to organize and strike, freedom of assembly and association, the right to demonstrate and collective bargaining rights to ‘irregular’ foreign workers.”[102] Despite anti-discrimination language in the Spanish constitution, the government of Spain distinguished between “legal immigrants” and “illegal immigrants.”[103] The Committee on Freedom of Association concluded that the Act was a violation of “Article 2 of Convention No. 87 according to which workers, without distinction whatsoever, have the right to join organizations of their own choosing.”[104]
In October 2002, the American Federation of Labor and the Congress of Industrial Organizations (AFL-CIO) and the Confederation of Mexican Workers (CTM) filed a complaint with the ILO’s Committee on Freedom of Association in response to the Hoffman decision, alleging “on the basis of their immigration status, millions of workers have lost the only protection that had been available to ensure respect for their freedom of association rights.”[105] Moreover, the decision “puts the United States squarely in violation of its obligations under ILO Conventions Nos. 87 and 98 and its obligations under the ILO’s 1998 Declaration on Fundamental Principles and Rights at Work.” [106] In its conclusions, the ILO found that the post-Hoffman remedies available to migrant workers in the United States were “inadequate to ensure effective protection against acts of anti-union discrimination.”[107] The ILO also recommended that the United States amend labor law to bring it into conformity with freedom of association principles and ensure “effective protection for all workers against acts of anti-union discrimination in the wake of the Hoffman decision.”[108]
The Inter-American Court of Human Rights has the power to exercise a broadly defined advisory jurisdiction and may issue advisory opinions concerning the meaning of the American Convention, the American Declaration, and other human rights instruments.[109] In May 2002, Mexico requested an advisory opinion in response to the question: “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?”[110] The Court decided unanimously that “the State has the obligation to respect and guarantee the labor human rights of all workers, irrespective of their status as nationals or aliens, and not to tolerate situations of discrimination.”[111] Moreover, “workers, being possessors of labor rights, must have all the appropriate means to exercise them. Undocumented migrant workers possess the same labor rights as other workers in the State where they are employed.”[112]
IV. Specific Recommendations
Human Rights Advocates urges the Commission on the Status of Women to recommend to U.N. Economic and Social Council (ECOSOC):
A. Recommend individual member states
1. Affirm the right to freedom of association, the right to organize, and the right to collective bargaining with no discrimination on the basis of immigration status as established in the ICESCR, ICCPR, and ILO Conventions and highlighted in the recent decisions of the ILO and the Inter-American Court.
2. Review their migration legislation policies, and conducting in-depth studies on the causes of irregular migration and the correlation between irregular migration, migration legislation and policies and the trafficking of women and children.
3. Ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.
B. Recommend that the Commission on Human Rights’ Special Rapporteur On Migrant Workers, in fulfillment of her mandate "to recommend actions and measures applicable at the national, regional and international level to eliminate violations of the human rights of migrants" include information on:
1. The right to freedom of association, the right to organize, and the right to collective bargaining with no discrimination on the basis of immigration status as established in the ICESCR, ICCPR, and ILO Conventions and highlighted in the recent decisions of the ILO and the Inter-American Court.
2. The rights of domestic workers to freedom of association, organize, and collective bargaining with no discrimination on the basis of immigration status.
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[1] Kristina Zinnen, Edith Coliver Intern representing Human Rights Advocates through the University of San Francisco School of Law, International Human Rights Clinic.
[2] Beijing Declaration and Platform for Action, September 1995, § 9 [hereinafter Beijing Platform].
[3] Id. at § 154.
[4] Id. at § 158.
[5] Id.
[6] Amnesty International, “Protecting Migrant Workers' Rights,” The Wire (December 2004).
[7] International Organization for Migration, Valuing Migration (2004).
[8] International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, Dec. 18, 1990, art. 2, § 1, G.A. Res. 45/158 [hereinafter Migrant Convention].
[9] Connie de la Vega and Conchita Lozano-Batista, "Advocates Should Use Applicable International Standards to Address Violations of Undocumented Migrant Workers’ Rights in the United States, “Human Rights and Refugees, Internally Displaced Persons and Migrant Workers: Essays in Honor of Joan Fitzpatrick and Arthur Helton, Bayefsky, Anne F. ed. (2005).
[10] December 18, Worldwide Respect for Migrants' Rights (2004).
[11] Beijing Platform, supra note 1, at § 19.
[12] Human Rights Watch, “Help Wanted: Abuses against Female Migrant Domestic Workers in Indonesia and Malaysia,” Vol. 16, No. 9 (B) (July 2004).
[13] ICFTU Online, "Spotlight Interview - Gloria Fontes of the International Migration Branch (MIGRANT) of the International Labour Organization" (June 2, 2004).
[14] Human Rights Watch, supra, note 11.
[15] Beijing Platform, supra note 1, at § 36.
[16] Id. at § 116.
[17] “Efforts mount in Japan to counter human trafficking,” ILO Online 42 (2004). In Japan, the lack of adequate labor law protection has resulted in proliferation of trafficking of Thai, Filipino, Korean, Eastern European, and South American women and children into Japan's sex industry. In India and Bangladesh, many women are trafficked to work in sweatshops.
[18] Human Rights Watch, supra, note 11.
[19] Id.
[20] ICFTU Annual Survey of Violations of Trade Union Rights (2004) [hereinafter ICFTU Annual Survey].
[21] Id.
[22] Human Rights Watch, supra, note 11.
[23] Stephen Frost, “Indonesia: Govt signs MOU on migrant workers with Malaysia,” Asian Labour News (May 11, 2004).
[24] Human Rights Watch, supra, note 11.
[25] Human Rights Watch, “Malaysia: Labor Accord Fails Indonesian Migrant Workers,” (May 11, 2004).
[26] Human Rights Watch, “Malaysia: Mass Expulsion Puts Migrants at Risk,” (November 23, 2004). The practice of expelling irregular migrants is widespread throughout Asia. In Thailand, migrant workers are often arrested or deported for demanding labor rights or as scapegoats during periods of economic crisis. See Amnesty International, supra note 5. Approximately 10,000 Burmese are expelled from Thailand each month in “informal deportations” on the grounds that they are illegal migrant workers. See Sam Zia-Zarifi, “The Land of Compassion is Slowing Growing Cold,” The Nation (Thailand) (January 27, 2004). The Korean Confederation of Trade Unions has heavily protested similar expulsions in South Korea.
[27] Associated Press, “Malaysia: Government Denies Role in Kids’ Deaths,” Asian Human Rights Commission (August 28, 2002).
[28] “64 Workers, Children Die in Nunukan,” The Jakarta Post (September 1, 2002).
[29] Id.
[30] Oliver Teves, “Philippines Leader Decries Malaysia,” The Washington Post (September 4, 2002).
[31] Associated Press, supra note 26.
[32] Mergawati Zulfikar, “DPM: Illegals Must Leave By End of Year,” The Star Online (December 9, 2004).
[33] Zubaidah Abu Bakar and Chok Suat Ling, “Crackdown on illegals to start on March 1,” New Straits Times (February 14, 2005).
[34] Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137 (2002).
[35] Id. at 140.
[36] Id. at 152.
[37] De la Vega and Lozano-Batista, supra note 8.
[38] 535 U.S. at 154 (Breyer, J., dissenting).
[39] De la Vega and Lozano-Batista, supra note 8.
[40] Jennifer Berman, “The Needle and the Damage Done: How Hoffman Plastics Promotes Sweatshops and Illegal Immigration and What to Do About It,” 13 Kan. J.L. & Pub. Pol’y 585, 602 (Summer, 2004). Garment factory owners, for example, could close upon issuance of a cease and desist order, terminate all workers, and reopen under a new name in a new facility.
[41] De la Vega and Lozano-Batista, supra note 8.
[42] Tuv Taam Corp., 340 NLRB No. 86 (2003).
[43] Chicago Future, Inc. and International Brotherhood of Teamsters Local Union No. 727 AFL-CIO, 2003 NLRB LEXIS 93 (2003).
[44] Human Rights Watch, “Abuses Against Workers Taint U.S. Meat and Poultry,” (Jan. 25, 2005).
[45] U.S. Equal Employment Opportunity Commission, Rescission of Enforcement Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws, Directives Transmittal, Number 915.002 (June 27, 2002).
[46] De la Vega and Lozano-Batista, supra note 8.
[47] Brennan Center’s Legal Services E-lert, “After Farm Contractors Plead Guilty on Trafficking Charges, Ten Migrant Farmworkers Aided by New York Legal Services Groups Proceed with Suit for Unpaid Wages,” Dec. 16, 2004. See also Javier H. v. Garcia-Botello, 218 F.R.D. 72 (W.D.N.Y. 2003) (court ordered a stay of discovery until the conclusion of evidence in the related criminal case, United States v. Maria Garcia et al., 02-CR-110-S).
[48] Id.
[49] Migrant Rights International, Putting the Migrants at the Center, International Migrants' Day Release (December 2004).
[50] ICFTU Annual Survey, supra note 19.
[51] Joint Statement of Migrant Forum Asia and Migrant Rights International for International Migrants' Day (December 2004) [hereinafter Joint Statement].
[52] ICFTU Annual Survey, supra note 19, at 289.
[53] Id. at 293.
[54] Joint Statement, supra note 50.
[55] ICFTU Annual Survey, supra note 19, at 284-285.
[56] Id. at 285-286.
[57] Id. at 291.
[58] ICFTU Annual Survey, supra, note 19.
[59] Id.
[60] Id. at 284-285.
[61] Id. at 288.
[62] Id. at 290.
[63] Id.
[64] Id. at 291.
[65] Id.
[66] Id. at 292-293.
[67] Id. at 277-294. There is no right to collective bargaining in Iran, Oman, Qatar, Syria, United Arab Emirates, and Yemen. In Iran, the law does not give workers the right to strike. Labor legislation does not apply in the export processing zones or in small companies employing five people or fewer. Other obstacles to organizing include security and intelligence forces in the workplace and the increasing trend towards temporary contracts. In Oman, large companies may establish joint labor-management committees, which may not discuss pay, hours, or working conditions, which are only defined by law or by individual contracts. In Saudi Arabia, trade unions and strikes are banned by royal decree, and there are heavy limitations on the right of association. Whoever tries to form a union can be dismissed, imprisoned, or deported. In Syria, the law prohibits independent trade unions and trade unions in the seven export processing zones. In Yemen, authorities arrest and detain trade unionists for their trade union activities.
[68] Anne Renaut, “Migrant workers in Europe: less well off than the nationals,” ICFTU Trade Union World Briefing, No. 7 (December 2003).
[69] Anne Renaut, “Migrants in European agriculture: open season for exploitation,” ICFTU Trade Union World Briefing, No. 7 (December 2003).
[70] Anne Renaut, supra note 67. These working conditions include including “weekend work, work during holidays, night shifts (Germany), less health and safety protection (Spain), inappropriate training (UK), and high rates of accidents at work (Austria, Spain, UK.)” Migrants earn lower wages than nationals in Spain or have unjustified deductions from their payslips in the United Kingdom. In Belgium, Turkish women migrants are paid 60% less than their Belgian counterparts.
[71] Barbara Kwateng, “Polish seasonal agricultural workers in the German countryside,” ICFTU Trade Union World Briefing, No. 7 (December 2003). 89% of the seasonal agricultural workers in Germany are from Poland. One German trade unionist described these workers’ living conditions as “filthy and stinking.”
[72] Anne Renaut, “Women migrants in the informal economy: building workers’ federation launches campaign,” ICFTU Trade Union World Briefing, No. 4 (June 2004).
[73] Id. See also Anne Renaut, “British transport union calling for licensing of gangmasters,” ICFTU Trade Union World Briefing, No. 4 (June 2004). In the UK’s agricultural sector alone, 3,000 gangmasters are employing about 60,000 people.
[74] Natacha David, “Italian unions call for better integration and treatment of immigrants,” ICFTU Trade Union World Briefing, No. 4 (June 2004). There are an estimated 600,000 irregular migrants in Italy.
[75] Case No. 2121 (Spain), ILO Committee on Freedom of Association, 327th Report of the Committee on Freedom of Association (2002).
[76] ICFTU Annual Survey, supra note 19, at 263.
[77] Anne Renaut, “Spain: trade union information centres,” ICFTU Trade Union World Briefing, No. 7 (December 2003).
[78] David Browne, “Spain: ‘Treat us like human beings, not like animals,’” ICFTU Trade Union World Briefing, No. 4 (June 2004).
[79] Id.
[80] Office of the U.N. High Commissioner for Human Rights, Status of Ratifications of the Principal International Human Rights Treaties, June 4, 2004.
[81] International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, art. 8, § 1(a).
[82] Id.
[83] Id. at art. 8, § 3.
[84] Office of the U.N. High Commissioner for Human Rights, supra note 79.
[85] International Covenant on Civil and Political Rights, Dec. 16, 1966, art. 22, § 1, 999 UNTS 171.
[86] Id. at art. 22, § 2.
[87] ILO Mandate, .
[88] De la Vega and Lozano-Batista, supra note 8.
[89] Id.
[90] ILOLEX Database of International Labour Standards.
[91] Office of the U.N. High Commissioner for Human Rights, supra note 79.
[92] Migrant Convention, supra note 7, at art. 11, § 1.
[93] Id. at art. 26.
[94] European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, art. 11, § 1, 213 UNTS 222, as amended by Protocols Nos. 3, 5, 8, and 11, which entered into force on Sep. 21, 1970, Dec. 20, 1971, Jan. 1, 1990, and Nov. 1, 1998, respectively.
[95] Id. at art. 11, § 2.
[96] African Charter on Human and Peoples’ Rights, June 27, 1981, art. 10, § 1.
[97] American Convention on Human Rights, November 22, 1969, art. 16, § 1.
[98] Id. at art. 16, § 2.
[99] Charter of the Organization of American States, 1948, art. 45, § c, 119 UNTS 3.
[100] American Declaration of the Rights and Duties of Man, 1948, art. XXII.
[101] Case No. 2121 (Spain), ILO Committee on Freedom of Association, 327th Report of the Committee on Freedom of Association (2002).
[102] Id.
[103] Id.
[104] Id.
[105] Case No. 2227 (United States), ILO Committee on Freedom of Association, 332nd Report of the Committee on Freedom of Association, GB.288/7 (Part II) (November 2003).
[106] Id.
[107] Id.
[108] Id.
[109] De la Vega and Lozano-Batista, supra note 8.
[110] Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18, 17 September 2003, Inter-Am. Ct.H.R. (Ser. A) No. 18/03 (2003) at 2.
[111] Id. at 113-114.
[112] Id. at 114.
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