Migrant Workers in Israel: Towards Proposing a Framework of Enforceable Customary International Human Rights
| Author | Leonard M. Hammer |
| Published date | 01 March 1999 |
| Date | 01 March 1999 |
| DOI | 10.1177/092405199901700102 |
| Subject Matter | Part A: Articles |
Part A: Articles
Migrant Workers in Israel: Towards Proposing aFramework of
Enforceable Customary International Human Rights
Leonard M Hammer"
Abstract
Upholding the human rights
of
migrant workers raises a host
of
legal problems
for
a State
that desires cheap foreign labour. Israel has reaped the benefits
of
such labour without
incurring any significant responsibility to these exploited workers.
Yet,
their growing
presence in Israel is beginning to raise legal and social concerns given the small size
of
the State and its rising unemployment. Similar to other States with migrant workers,
a~tempting
to carve out legal protections for migrant workers in Israel proves quite
difficult in the absence
of
any formal legislation. This article begins to identify various
l~gal
sources that can serve as aframeworkfor explicating the emerging customary human
rzghts
of
migrant workers. Such customary human rights can be derived from
unincorporated treaties and conventions andfrom the domestic laws and judicial decisions
of
the State.
Introduction
The human rights
of
legal and illegal! migrant workers exemplify the jurisdictional
struggle between State sovereignty and its control over immigration versus the obligation
on the State to uphold the human rights
of
all individuals found within a State's territory.'
Additional policy considerations compound thesejurisdictional considerations since aState
does not desire to 'reward' illegal migrant workers by recognising their human rights.
Further illegal immigration and the migrant workers' economic effect on the domestic
The author acknowledges the financial support of the Lady Davis Fellowship Trust, Hcbrew University,
Jerusalem, Israel. He would like to thank the participants at the University of Haifa Faculty Seminar and the
assistance of Dr. Moshe Hirsch
of
Hebrew University. The author wishes to thank Dr. Guy Mundlak for his
helpful comments and insight. Mr. Leonard Hammer is continuing his Post-Doctorate studies at Hebrew
University. As an award winning author, Mr. Hammer has lectured at the University
of
Haifa, and the
University
of
London. Degrees received include: a Juris Doctorate degree from Georgetown University, a
LL.M. from New York University, and a Ph.D. from the University
of
London.
The rights accorded to migrant workers will depend on their legal status since a migrant worker lawfully
working in the State is generally entitled to a larger 'bundle' of rights than the illegal worker. Intemational
human rights law reflects this difference, as indicated in the United Nations Convention on the Protection
of
the Rights of All Migrant Workers and Members of their Families (hereinafter: United Nations Migrant
Workers Convention), where certain rights are reserved for both 'regular and irregular' migrant workers,
While according legal (or 'regular')migrant workers additional rights.
Cf
Part III
of
the Convention with
Part IV.
See e.g. A. Boudahrain,
'The
New International Convention: A Moroccan Perspective', 25 Inti. Migr. R.,
1990, p. 866, noting that the UN Convention is an attempt to create a compromise between these conflicting
considerations.
Netherlands Quarterly
of
Human Rights, Vol. 17/1, 5-30, /999.
10
Netherlands Institute
of
Human Rights
(81M).
Printed in the Netherlands. 5
NQHR
111999
labour force, such as increased unemployment for national workers,' also concern the
State. Even with some form
of
international human rights standards - a necessary
development given the migrant workers' precarious economic and social positions such
as dangerous work conditions and sub-minimum wages
_4
the possibility for enforcement
of
these human rights is dubious because migrant workers, especially illegal ones, hesitate
to turn to a legal system that do not officially recognise their presence within the State.'
Despite the strong grounds for dissuading migrant workers from entering a country,
economically developed States that attract migrant workers tend to tolerate some form
of
migrant worker population." The economic benefits
of
cheap labour are either too
tempting for a State to forego or too difficult to prevent private commerce from
exploiting. One also must not overlook the benefits accorded to the State sending the
migrant worker. The sender State enriches its domestic economy at a minimal cost since
asubstantial number
of
the State's potential labour force is generating income from
employment overseas while undergoing minimal social expenses at horne."
The problems surrounding the relatively high number
of
non-Arab! migrant workers
in Israel typifies the jurisdictional and policy considerations surrounding migrant workers.
To alleviate the risk
of
terrorist attacks by Arab workers daily entering and exiting the
country from the Occupied Territories," the Israeli Government saw fit to issue a large
number
of
work permits to migrant workers from other countries in the early 1990s. As
a result, despite a 1997 third quarter figure
of
179,000 unemployed Israeli workers, the
S. Hune and J. Niessen, 'Ratifying the UN Migrant Worker Convention: Current Difficulties and Prospects',
Netherlands Quarterly
of
Human Rights, Vol. 12,
No.4,
1994, p. 393 (discussing the reasons why States
have not ratified the UN Migrant Workers Convention). See also J. Niessen, 'Immigrants and Migrant
Workers', in: A. Eide, C. Krause and A. Rosas (eds), Economic, Social and Cultural Rights: A Textbook,
Martinus Nijhoff, Dordrecht, 1995.
H.E. Warzazi, Exploitation
of
Labour Through Illicit and Clandestine Trafficking, ElCN.4//Sub.2/L.629,
1975.
Bosniak, 'Human Rights State Sovereignty and the Position of Undocumented Migrant Workers Under the
International Migrant Workers Convention', 25 Inti. Mig. R., 1991, p. 737.
See, e.g., US and migrant agricultural workers from Mexico. Saxowsky, Erjavec, Petersen, and Mansell,
'Employing Migrant Agricultural Workers: Overcoming the Challenge
of
Complying with Employment
Laws', 69 North Dak. L. R., 1993, p. 307; Yale-Loehr, 'Foreign Farm Workers in the United States: the
Impact of the Immigration Reform and Control Act', 15 N. Y. U. Rev.
of
L. &Soc. Change, 1987, p. 333.
Abella, 'Labour Migration from South and South-East Asia Some Policy Issues', 123 Inti. L. R., 1984, p.
491 (noting benefits to the local labour market, finance market dueto the influx offoreign money, and goods
and services market); Forman, 'ProtectingPhilippine Overseas Contract Workers', 16
Compo
Lab. L. J., 1994,
p, 26 (regarding Philippines Government encouraging its workers to emigrate).
The rights accorded to Arab workers residing in the Occupied Territories were changed following the Oslo
Peace Accords. See Law Applying the Agreement with the Palestinian Entity, 48 Sefer Hachukim 5755 at
Chapter 6, where changes were made to a variety of social security laws to incorporate individuals living
in the Occupied Territories who also have the right to reside in Israel. The Labour Court has also applied
Israeli law in the reverse situation, where Israeli companies operate in Area C of the Occupied Territories
and hire Arab workers with no right to reside in Israel. Haaretz, 8 January 1998, p. A4 referring to a Labour
Court decision applying Israeli labour law to an Israeli company operating in the Occupied Territories with
Arab workers who had no right to reside in Israel; Haaretz, 26 December 1997 regarding a Labour Court
decision applying minimum wage law in a similar scenario.
E/1990/5/Ad!i.39. See Combined Initial and Second Report of the State
of
Israel Concerning the
Implementation
of
the United Nations Covenant on Economic Social and Cultural Rights, 1997, at p. 29.
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