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CAUTION!
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site is no longer actively maintained.
It remains on-line as a historical exhibit about immigration, and as
a record of creative research and service by University of Tennessee law students. The issues dealt with here
are still fascinating and timely, but viewers should use caution. Any
specific legal information contained on this site should not be relied
upon, because it may have changed in the intervening years. For additional information about
this site and the decision to leave it on the web, visit the home page:
http://web.utk.edu/~tnlatina
~Immigration Policy~
For web links and
contacts on this issue, see our general links
& contacts pages.
Table
of Contents
I. Immigration
Policy Debates-- An Overview<
A. Who should be admitted to the U.S. as legal immigrants,
authorized to work?
B. How should immigrants, both documented and undocumented, be
treated once they are here?
II. Immigrants' Rights in the United
States—Limited by State
Sovereignty or Governed by the International Standard?--Article by Jennifer S. Buck -- J.D. University of
Tennessee 2000
I.
 Immigration Policy Debates-- An Overview
Throughout America,
recent increases in legal and illegal immigrant flows have led to fierce
debate, and have produced some strange bedfellows in the world of
immigration policy. Policy issues at stake include both of the following
distinct questions:
Who should be admitted to the U.S. as legal immigrants,
authorized to work?
How should immigrants, both documented and undocumented, be
treated once they are here?
In this introduction we will highlight a few of the major themes that
are reflected in some of these policy debates, but for more in-depth exposure
readers should seek other sources. We have tried with this web site to
provide links to groups endorsing a range of positions on immigration
policy.
Immigration restrictions: Who should
be admitted?
Some people argue that immigration should be more restricted. Among
the diverse reasons advanced for greater restriction are:
The view that America
should remain predominantly white, and that continued immigration threatens
white numerical and cultural predominance.
The view that the present immigrant stream (at least at the low-wage
end) is a "low-quality" stream, that is, that many immigrants
arriving in the U.S.
today have few skills or assets to contribute.
The view that the present immigrant stream (or certain parts of it) is a
"high-defect" stream, that is, that many immigrants arriving in
the U.S. today bring problems with them, including diseases and habits of
poverty, drugs, illiteracy, and a tendency to crime.
The view that continued immigration will exert a downward pressure on
wages and working conditions of workers already in the U.S.,
especially workers toward the bottom of the economic ladder, who are most
likely to be in direct competition with low-skill immigrants.
The view that the U.S.
welcoming of high-skill immigrants encourages a brain-drain from the poorer
countries who need to keep their native talent at home for the work of
national development.
The view that there is simply not enough to go around, that the U.S.
can’t afford to share its wealth with the hordes of people who are
presently clamoring at our gates, that a soft-hearted decision to do so
would cripple the economic system, thus killing the goose that is laying
golden eggs not only for America but for the rest of the world as well.
The view that immigration restrictions play an indispensable part in
defining us as a nation , so that a failure to enforce restrictive
immigration rules, to prevent cultural and demographic infiltration across
our borders, would cause us to lose our identity in the resulting flood.
On the other hand, some people argue that immigration should be more
generously permitted than it is at the present time. Among the diverse
reasons advanced for greater liberalization are:
The view that past immigration restrictions operated with a strong
racial bias in favor of preserving a predominantly white America,
and that the nation should gladly abandon and correct for this past unjust
and racially provincial practice.
The view that the present immigrant stream (including the low-wage end)
is a "high-quality" stream, that is, that many immigrants
arriving in the U.S. today have characteristics that make them particularly
valuable to the U.S. economy. (Various commentators see different --
sometimes contradictory -- characteristics as desirable, but some examples
of characteristics praised include things like the following. Immigrants
are said to have a strong work ethic; to display an admirable devotion to
family; to have deep religious convictions; to be infused with energy for
individual risk-taking and entrepreneurship; to come from powerful traditions
of collective action, including labor organizing, community improvement,
and collective activity; to show a willingness to perform work despised by
U.S.-born workers; to throw themselves into a job for an employer without
stint or complaint; to embody and contribute to the U.S. a cultural, ethnic
and racial diversity that will better enable the whole society to function
competently in a globalized environment.)
The view that increased immigration flows will help discipline U.S.
workers and encourage them to give up their short-sighted and greedy
insistence on inflated wages and soft working conditions, thus rendering
them readier to pitch in and make their employers more efficient and
productive competitors in the global economy.
The view that increased immigration flows will help U.S.
workers learn about and make common cause with their fellow workers around
the world, with whom they share many important interests and experiences,
despite divisions of race, culture, language, and income.
The view that present low-wage immigrant workers are savvy fighters
against injustice and will bring important knowledge and energy to the task
of winning greater democracy and economic justice for those toward the
bottom of the economic heap in America.
The view that freedom of movement is a basic human right that should be
recognized and protected in global society, either in all instances, or at
least in instances where capital and goods are flowing freely across
borders.
The view that the U.S. has a responsibility to accept (certain)
immigrants and refugees because it has played a powerful role in creating
the conditions that have produced migration flows, sometimes as a result of
military activity, sometimes as a result of economic policies that the U.S.
has urged or forced on various "sending" countries.
The view that attempts to keep immigrants out of the U.S. are, in any
case, doomed to failure given the social, economic, geographic, and
technological realities of today’s global economy, and that continued
insistence on such restrictions will only lead to further militarization,
repression, and abridgment of fundamental rights for all Americans.
The view that immigrants are more likely to vote Democratic, or
Republican.
Immigrants rights: How should
immigrants be treated once they are here?
Please note that these two groups of questions can be treated
separately. That is, one could take a restrictive view on who should be
admitted to the country, but a very generous view of what rights and
protections should be guaranteed to immigrants once they are here.
Similarly, a further subdivision between "legal" and
"illegal" immigrants is likewise possible, although people differ
strongly on the wisdom and morality of such a division.
Policy debates on immigrants’ rights include strong disagreements
over various aspects of the following:
Access to public education, health care, welfare benefits, and legal
representation.
Eligibility to vote.
Protection from various kinds of discrimination, including police
misconduct.
Rights to judicial review.
Grounds for detention of immigrants.
Grounds for removal from the country.
Extent of the duty of government and others to provide translation
services.
Protection of labor and employment rights of undocumented workers.
Public expenditure for the promotion of immigrants’ rights and
welfare.
II.
Immigrants' Rights in the United States—Limited by State Sovereignty or Governed by
the International Standard?
Article by Jennifer S. Buck -- J.D.
University of
Tennessee 2000 --
May, 2000
One aspect of the immigrant policy debate that is important to consider
is whether rights of immigrants in America
should continue to be limited by state sovereignty n1 or
whether those rights should instead be governed by international standards.
n2 If immigrants' rights are governed by state
sovereignty, then the state can disregard international standards when
creating legislation to control immigrants inside United
States' borders. n3
1. State Sovereignty Approach
Currently, the United States
continues to adhere to a national sovereignty approach to immigration. n4 Over the last fifty years, the United
States judicial system has held that
international law human rights clauses are "non-self executing". n5 Additionally, the Supreme Court, "continues to abide
by the common-law plenary power doctrine that ‘over no conceivable
subject is the legislative power of Congress more complete than it is over
the admission of aliens.'" n6
2. International Law Approach
Another approach to immigration the United
States could implement is an
international approach. Customary international law would mandate that
aliens within United States
borders be treated fairly and decently following "universal principles
of justice." n7 This change in policy would result
in major deviations from the United States'
traditional immigration law norms. To better understand the repercussions
of such a major policy change we must first examine the international
standards.
The international human rights community has addressed the labor and
human rights of immigrants on several levels. International human rights
standards important to immigrants are included in:
- The United Nations
Charter, n8
- Universal
Declaration of Human Rights, n9
- International
Covenant on Civil and Political Rights (ICCPR), n10
- Social and Cultural
Rights (ICESCR), n11
- International Labor
Organization (ILO) conventions and recommendations. n12
The United
Nations Charter
The United Nations Charter's statement of purpose demonstrates the
all-encompasing aspect of international standard. n13
Paragraph 3 of Article 1 describes that purpose as "promoting and
encouraging respect for human rights and for fundamental freedoms for all
without distinction as to race, sex, language, or religion." n14 Although "nationality" is not included in
Charter's statement of purpose, arguments suggest that an understanding of
international human rights insists that a nation respect all individuals
within its borders. n15 This encompassing of all
individuals stems from the international understanding of human rights as
rights possessed by persons as human beings, not as members of a particular
state. n16
Universal Declaration
of Human Rights
A demonstration of the clash between United
States' national sovereignty emphasis in
immigration policy and the international standard can be found in the
Declaration of Human Rights. n17 Under Article 13,
Paragraph 2 of the Declaration of Human Rights emigration is a right of all
individuals. n18 However, while a person has an
internationally protected individual right to emigrate, national
sovereignty allows the United States
to decide whether that person has a corresponding right to immigrate. n19
Despite this clash, Paragraph 1 of Article 25 of the Universal
Declaration of Human Rights emphasizes the protection of all persons (which
logically includes illegal immigrants) right to work regardless of
documented status: "Everyone has the right to a standard of living
adequate for the health and well-being of himself and of his family,
including food, clothing, housing and medical care and necessary social
services, and the right to security in the event of unemployment, sickness,
disability, widowhood, old age or other lack of livelihood in circumstances
beyond his control." n20 Considering the above
declaration, justification as to why Americans should have a right to work
superior to non Americans becomes difficult. However, the debate over
whether people who can not find work in their own countries should be
deprived of work in the United States when often American employers want
immigrant workers is likely to continue.
International
Covenant on Civil and Political Rights (ICCPR) and the International Covenant
on Social and Cultural Rights (ICESCR)
A particularly important issue for working immigrants concerns the right
to join unions and thus strengthen bargaining power and avoid employer
abuse of power. Another source of international law, the ICCPR, insures
individuals' freedom of association specifically for the purpose of forming
and joining trade unions. n21 The ICESCR goes a step
further and protects the rights of associated workers to strike. n22 Evidently, the ICCPR and ICESCR also protect
undocumented workers' rights since neither the ICCPR nor the ICESCR
explicitly exclude undocumented workers. n23
Moreover, the ICESCR goes a step further than most international
documents and protects individuals' economic, social, and cultural rights. n24 In addition to the protection of workers freedom of
association, ICESCR also recognizes the right of "everyone" to
work and choose that work freely, n25 to enjoy fair and
favorable working conditions, n26 to social security and
social insurance coverage, n27 and to an adequate
standard of living for oneself and one's family. n28
Often, practical realization of the rights found in ICESCR cannot be
accomplished in one's own country because of poor economic, social or
political conditions. As a result, these individuals migrate to find work
and a better life for themselves and their families. This migration should
not deprive those immigrants of the rights guaranteed under ICESCR. n29
International Labor Organization (ILO) conventions and
recommendations
Possibly the most comprehensive and influential international standards
on labor and employment are encompassed in ILO declarations and
recommendations. n30 The ILO conventions and
recommendations cover most of the important labor issues including the
right of association (form and join unions), right of free choice of
employment, right to fair compensation for work, right to fair working
conditions. n31 These ILO conventions and
recommendations cover "workers rights" and do not distinguish
immigrant workers or exclude immigrant workers from protection. n32
ILO membership implies a commitment to the general principles of the ILO
even when the member country has not ratified the particular conventions or
recommendations. n33 Ratification is more important
within the ILO for supervision purposes. n34 It is
important to note that the ILO does not authorize the use of force or
economic sanctions for violations of labor rights, so it must rely on
voluntary compliance. The protection of labor rights is reliant on: (1)
defined rights (conventions, recommendations, and monitoring bodies'
interpretation of those rights in specific cases); (2) international
acceptance of those rights; (3) Monitoring those rights; and (4)
publication of ILO findings. n35
As the world continues to evolve into an increasingly global community
and international laws become progressively more important, there are
several valid reasons why the United States should consider adopting an
international perspective on immigration. n36 In the law
review article, "The Immigrant First as Human: International Human
Rights Principles and Catholic Doctrine as New Moral Guidelines For U.S.
Immigration Policy," Oven summarizes reasons she believes the United
States should adopt an international perspective: "First,
international law is the proper arena for the immigration problem. Article
1, Paragraph 3 of the United Nations Charter lists as a purpose of the U.N.
‘to achieve international co-operation in solving international
problems of an economic, social, cultural, or humanitarian character.' n37 Furthermore, international human rights law is
primarily concerned with protecting the human dignity of all, which is an
element missing from national immigration policy. . . In addition, from the
perspective of the emigration/immigration dichotomy, the immigration
phenomenon is clearly a two-way street. Trying to regulate only half of it
is a band-aid rather than a cure. In order to regulate all of it,
international teamwork and cooperation is necessary. . . National
sovereignty has not brought about a solution to this growing concern. . .
Finally, an international solution is mandated by the fact that immigration
touches every country in the world. ‘Immigrants will continue to
cross our borders so long as unstable social, political, and economic
conditions persist in their countries of origin....' n38
It is time to realize that countries' actions and needs have global effects
. . ." n39
n1 State sovereignty is defined as,
"[t]he supreme, absolute, and uncontrollable power by which any
independent state is governed . . . The power to do everything in a state
without accountability . . ." Black's Law Dictionary 1396 (6th ed.
1990). Oven further explains that, "a central tenet of sovereignty is
that every nation has the right to exclude whomever it chooses." Oven,
supra note 21, at 528.
n2 See infra for discussion about International standards.
n3 Kristina M. Oven, Article, The Immigrant First as Human:
International Human Rights Principles and Catholic Doctrine as New Moral Guidelines
For U.S. Immigration Policy, 13 Nd J. L. Ethics & Pub Pol'y 499, 501
(1999). While state sovereignty allows the United States legally to
disregard international standards, the United States' internal immigration
policies may still be influenced by international condemnation or pressures
placed on the United States by other countries.
n4 Id at 527.
n5 Id.
n6 Id. (citing Fiallo v. Bell, 430 U.S. 787, 792 (1977)
(quoting Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339
(1909)) Definition of ‘plenary power doctrine' (Special judicial
deference given to legislature to regulate immigration policy). Marisa Ann
Tostado, Alienation: Congressional Authorization of State Discrimination
Against Immigrants, 31 Loy. L.a. L. Rev. 1033, 1039 (1998).
n7 Oven, supra note 3, at 527. However, with international
law often comes uncertainty and here, the debate continues as to what
"fair and decent" under the "universal principles of
justice" means.
n8 U.N.
Charter.
n9 U.N.
Universal Declaration of Human Rights.
n10 See International Covenant
on Civil and Political Rights, Dec. 16, 1966, art. 22, 999 U.N.T.S. 302
[hereinafter ICCPR].
n11 International
Covenant on Economic, Social, and Cultural Rights, Dec. 16, 1966, art.
8, 993 U.N.T.S. 3 [hereinafter ICESCR]
n12 See Virginia A. Leary, The Paradox of Workers' Rights
as Human Rights, in Human Rights, Labor Rights, And International Trade 22
(Lance A. Compa & Stephen F Diamond ed., 1996). One important actor in
the international human rights community that has not addressed the idea of
workers' rights as human rights has been the non-governmental organization
(NGO). See Id. at 24-25. Despite the close association between labor rights
and human rights in general, the human rights NGOs have shown a surprising
lack of concern for workers' rights. Leary suggests this was probably
because most human rights organizations tend to focus on civil and
political rights rather than economic, social, and cultural rights. Id.
n13 U.N. Charter art. 1.
n14 U.N. Charter art. 1, para. 3.
n15 See Oven, supra note 3, at 525.
n16 See id.
n17 See id. at 526-527.
n18 U.N. Universal Declaration of Human Rights, art. 13,
para. 2.
n19 See Oven, supra note 3, at 527.
n20 U.N. Universal Declaration of Human Rights, art. 25,
para. 1.
n21 ICCPR, supra note 10, at art 22, par 1-3.
"Everyone 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. No 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 (ordre public), the protection of public health or morals or
the protection of the rights and freedoms of others. This article shall not
prevent the imposition of lawful restrictions on members of the armed
forces and of the police in their exercise of this right. Nothing in this
article shall authorize States Parties to the International Labour
Organisation Convention of 1948 concerning Freedom of Association and
Protection of the Right to Organize to take legislative measures which
would prejudice, or to apply the law in such a manner as to prejudice, the
guarantees provided for in that Convention." Id.
n22 ICESCR, supra note 11, art 8, par 1 (a-d). "The
States Parties to the present Covenant undertake to ensure: (a) The right
of everyone to form trade unions and join the trade union of his choice,
subject only to the rules of the organization concerned, for the promotion
and protection of his economic and social interests. No restrictions may be
placed on the exercise of this right other than those prescribed by law and
which are necessary in a democratic society in the interests of national
security or public order or for the protection of the rights and freedoms
of others; (b) The right of trade unions to establish national federations
or confederations and the right of the latter to form or join international
trade-union organizations; (c) The right of trade unions to function freely
subject to no limitations other than those prescribed by law and which are
necessary in a democratic society in the interests of national security or
public order or for the protection of the rights and freedoms of others;
(d) The right to strike, provided that it is exercised in conformity with
the laws of the particular country." (Emphasis added). Id.
n23 See ICCPR, supra note 10, at art 22, par 1-3. See
ICESCR, supra note 41, art 8, par 1 (a-d). Also Compare International
Convention on the Elimination of All Forms of Racial Discrimination, 1966,
PART 1, Art 1 [Hereinafter ICERD]. ICERD is an example of an international
document that excludes non-citizens and does so explicitly, "[t]his
Convention shall not apply to distinctions, exclusions, restrictions or
preferences made by a State Party to this Convention between citizens and
non-citizens." Id. Thus a conclusion could be drawn that if ICCPR and
ICESCR intended to exclude undocumented workers, they would do so
explicitly.
n24 ICESCR, supra note 11, art. 3
n25 Id. at art 6, par 1. Realization of this goal shall
include the progressive implementation of technical and vocational guidance
and training programs. Id. at art 6, par 2.
n26 Id at art 7, par 1. According to this provision, fair
and favorable working conditions includes: "(a) Remuneration which
provides all workers, as a minimum, with: (i) Fair wages and equal
remuneration for work of equal value without distinction of any kind, in
particular women being guaranteed conditions of work not inferior to those
enjoyed by men, with equal pay for equal work; (ii) A decent living for
themselves and their families in accordance with the provisions of the
present Covenant; (b) Safe and healthy working conditions; (c) Equal
opportunity for everyone to be promoted in his employment to an appropriate
higher level, subject to no considerations other than those of seniority
and competence; (d ) Rest, leisure and reasonable limitation of working
hours and periodic holidays with pay, as well as remuneration for public
holidays." Id. at art 7, par 1, (a-d).
n27 Id. at art 9
n28 Id. at art 11, par 1. This adequate standard of living
is to include, "adequate food, clothing and housing, and to the
continuous improvement of living conditions." Id.
n29 See supra note 23.
n30 Leary, supra note 12, at 24 (1998).
n31 International
Labor Organization Convention No. 87, 1944 (Freedom of Association and
Protection of the Right to Organize reaffirms the right of workers to form
and join trade unions (a right found in the 1919 ILO Constitution)); International
Labor Organization Convention No. 98, art 1, 1949 (Right to Organise
and Collective Bargaining Convention ensures workers of right to adequate
protection against anti-union discrimination); International
Labor Organization Convention No. 11, 1921 (Right of Association
(Agriculture) Convention, art 1, secures to agricultural workers the same
rights of association and directs that any statutory or other provisions
restricting agricultural workers of such rights should be repealed); International
Labor Organization Convention No. 97, 1949 (Migration for Employment
Convention (Revised), art 6, ensures that immigrants lawfully in a state's
territory should receive "treatment no less favourable than that which
it applies to its own nationals" in matters regulated by law and
concerning remuneration, membership of trade unions, accommodation, and
social security) ; International
Labor Organization Convention No. 143 (Migrant Workers (Supplementary
Provisions) Convention, art 8, 1975 states Immigrants residing in a state
legally for the purpose of employment shall not be regarded as illegal
simply because they lose employment and such loss of employment shall not
in itself imply the loss of residence status or work permit. Such an
individual shall enjoy equal treatment with nationals in respect to
guarantees of employment security, provision of alternative employment,
relief work, and retraining); International Labor
Organization Recommendation No. 86 (Migration for Employment
Recommendation), 1949; International Labor
Organization Recommendation No. 100 (Protection of Migrant Workers
[Under Developed Countries] Recommendation), 1955.
n32 See id.
n33 See Leary, supra note 12, at 24 (1998). 29. For
example, at the time of the massacre at Tiananmen Square, China had not
ratified the ILO freedom of association and right to organize conventions.
However, the ILO still examined those violations because China violated its
obligations to the "principles" adopted by the ILO. See Id. at
29-30.
n34 See id. at 30. Ratification obligates a state to
regularly submit information to an ILO monitoring body and to take into
consideration the comments of that monitoring body. See id.
n35 See id. at 40. The ILO complex monitoring system
includes a reporting system, ILO officials and ILO Committee of Experts who
review and analyze state reports, questioning of state representatives at ILO
conferences, ILO officials' personal country visits, and commissions of
inquiry. See id. The ILO primarily relies on public shame (publication of
states' failure to comply with or implement conventions) to promote and
protect human & labor rights. See id.
n36 Oven, supra note 3, at 527.
n37 Id. (quoting U.N. Charter, art.1, para. 3).
n38 Oven, supra note 3, at 528 (quoting Cardinal Roger
Mahony, Statement by Cardinal Roger Mahony on the Impact of Welfare and
Immigration Reform (May 29, 1997) .
)
n39 Oven, supra note 3, at 527-528.
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