Even illegal workers have rights

Whether documented or undocumented, migrant workers are entitled to those most basic rights that the nations of the world declared belong to every single human, asserts Danielle Celermajer.

Photo credit: indmediahk.net

The death last month of Myung Yeol Hwang, a South Korean who had been working in Australia for 12 years, brings into sharp relief not only the tragic vulnerability of the world’s millions of migrant workers, but the reality of their suffering in our backyard.

The Australian government can no longer turn a blind eye to the suffering of migrant workers – whether they have legal status or not. Both ethically and according to international law, all migrant workers, no matter their official status, are subject to the basic human rights covered by the Universal Declaration of Human Rights. At the minimum, that includes emergency medical care in the face of irreparable harm to one’s health, something that would probably have saved Hwang’s life.

It is disturbing that so much of the reaction to Hwang’s death, reported in the Herald this week, has circled around objections Australians have to people working ”illegally in our country”.

Australia, like any sovereign state, has a right to make and implement laws about who has permission to enter and to work. The very international laws protecting the rights of migrant workers explicitly recognise that states have this right. But we live in the real world where not only finance and financial crisis, but also labour (mostly cheap labour) circulates fairly freely and globally.

Like it or not, the Australian labour market includes many more people like Hwang, working at the periphery for low wages, often in dirty, dangerous and degrading jobs (the three Ds of migrant work conditions). Despite our objections at an official national level, clearly we, as employers, don’t seem to mind.

We like to be able to pay lower wages, to employ people casually and to run our businesses outside a formal economy that might curb our flexibility and our profits.
These are the indisputable facts, and the Australian government has an obligation to ensure basic human rights of those workers are not violated.

But disturbingly, Australia has ensured that technically it would be incorrect for me to claim that it has an obligation under international law to afford illegal migrant workers such protection. That is because it has refused to ratify the United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. In refusing to do so, Australia has effectively said that the rights set out in the Universal Declaration of Human Rights do not apply to this subclass of human beings.

Let me make it clear: we are not talking about guaranteeing illegal migrant workers the same type of welfare and social services we provide people who are legally in the country. Australia retains, and should retain, the right to draw distinctions between legal and illegal workers.

What we are talking about are those most basic rights that the nations of the world declared belong to every single human – rights to be protected from discrimination or abuse, to be treated with dignity and not be left to die without basic medical care.

Irrespective of the legal technicality of whether Australia has ratified the convention that explicitly states those rights apply to migrant workers, our obligations under the international bill of rights already require that we do so. That’s the thing about human rights – they apply to everyone, without distinction.

And irrespective of concerns that Australian citizens might have about the negative economic impact of an unregulated labour market, surely we still believe that our shared humanity with the people who lay the tiles in our bathrooms or wash the dishes when we eat out makes it unacceptable for us to treat them like refuse.

There are 90 million migrant workers around the globe, many of them working under irregular conditions or without documentation. This is a part of the reality of globalisation that we cannot ignore. And yet our international system of protection lags behind this global reality.

No longer protected by the laws of their countries of origin and not yet protected by the laws of their host countries, these millions – who care for our children, deliver our groceries, construct our buildings and indirectly fuel our economies, dangle in a dangerous gap where they are vulnerable to abuse, exploitation and the vagaries of sickness and industrial accidents.

We live in a world where there is a disconnect between the global movement of workers and the failure to ensure the protection of their fundamental human rights. We want to receive the benefits of globalisation, but seem unwilling to swallow the responsibilities. A few weeks ago, Australian news carried the shocking story of a Sri Lankan woman who returned from her work as a domestic worker in Saudi Arabia with 30 nails in her body. I am sure most Australians who read it recoiled in horror that someone could be treated in this way. But this is just the acute end of an epidemic that has followed hot on the heals of the globalisation of cheap and unregulated labour.

If Australia wants to hold its head up not just as a prosperous nation, but as an ethical one, too, it should take the step of ratifying the Convention to Protect Migrant Workers and advocate their protection throughout the rest of our common world.

Dr Danielle Celermajer is director of the University of Sydney’s masters of human rights and democratisation program.

This article first appeared in the Sydney Morning Herald, 23 September 2010

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