The Personal Application of the Right to Work in the Age of Migration

AuthorHaina Lu
DOI10.1177/016934410802600103
Publication Date01 March 2008
SubjectPart A: Article
Netherlands Q uarterly of Human R ights, Vol. 26/1, 43–77, 2008.
© Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands. 43
THe PeRsOnal aPPlICaTIOn Of THe RIGHT
TO WORk In THe aGe Of MIGRaTIOn
H L*
Abstract
e right to work is an important human rig ht recognised by most major human rights
instruments. It is, however, not clear whethe r and to what e xtent non-nationals can
enjoy the right to work in the host Stat e. As globalisati on stimulate s intern ational
migration more than ever, clarifying the personal application of the right to work
has important implications for protecting the hu man rig hts of immigrants and for
promoting immig rants’ integration in the host country. In practice, the right of non-
nationals to work is rest ricted to varying degrees according to their legal status in the
host country. Ba sed on existing hum an rights standards a nd jurisprudence, this study
intends to clarif y the right to work of several categories of non-nationals: long-term
residents, temporary residents, refugees and asylum-seekers , illegal immigrants, and
migrant workers.
1. INTRODUCTION
e right to work is a fundamental human right and is essential to the enjoyment of
other human rights such a s the rights to education, hea lth, housing, and adequate
standards of liv ing. Can the right to work be enjoyed by non-nationals of the State? If
so, to what extent can non-nationals enjoy this right in the territory other than of their
nationality? Do restrictions on the right of non-nationals to work constitute prohibited
discrimi nation or justiable dierentia l treatment? ese questions are closely linked
to States’ immigration control policy, securit y concerns, and their natural interests in
protecting national employment especi ally when the unemployment rate is high.
When global isation stimulates mig ration in search of work to the greatest ext ent
in human history, human rights protection still largely depends on nation-States.
* Haina Lu is a researcher and Ph .D. candid ate at the Inst itute for Human R ights of the Catholic
University of Leuven (KUL), Belgium. She is also a researcher at the Center for Ethnic and Migration
Studies of the Univer sity of Liè ge in Belg ium. She w ishes to thank her supervisor, Professor Paul
Lemmens, for hi s encouragement and helpfu l comments on previous dra s of this art icle.
Haina Lu
44 Intersentia
Freedom of movement, guaranteed by major human rights instruments, does not
grant an individua l the r ight to enter an a lien country without its agreement.2 If a
State is free to decide who is al lowed to enter its territory,3 does it mean th at the State
is also free to determine who is allowed to work in it s territory? Immigration control
based on exclusion is obviously at o dds with the universality of human rights base d
on i nclusion. Nevertheless, it is an unfortunate reality that at the current stage of
international law, giving priorities to c itizens over non-cit izens at lea st with regard
to certain rights is a generally accepted practic e.4 Such preferential treat ment of
citizens, however, is not unlimited under international human rig hts law. Ratication
of international human rights treaties which grant the right to work mean s that
the c ontracting State has committed itself to restricting its sovereign p ower a nd to
full ling its obligations corresponding to the right to work. It is therefore pertinent to
ask to wh at extent the State has discretion to determine who is allowed to work and
under what conditions.
e right to work of non-nationals is closely linked to the principle of non-
discrimi nation. When d iscussing whether dierential treatment a mounts to
discrimi nation, it is to be emphasised that non-nationals are not an identical group of
individuals, but comprise various subgroups with di erent legal statuses in the host
State, which, according to nationa l laws, oen determine s to what extent they ca n
enjoy the right to work. Under internationa l human rights law, dierential treat ment
towards dierent groups of non-nationals may also requi re dierent justications.
Given the limited space, t his article focuses on certa in specic categories of
foreign nationals: long-term residents, tempora ry residents, ref ugees a nd asylu m-
seekers, illegal immigrants, and migra nt workers. It may be worth reminding t hat
these individuals sometimes oat between categories, or belong to more than one
category. Whatever category foreign nationals actually belong to, their right to work is
by and large restricted by t he fact that they are non-nationals in the host State.
Although the rig ht to work is recog nised by almost all major human rig hts
instruments,5 Article 6 of t he International Covenant on Economic, Soc ial and
Cultural Rights (CESCR) deals more c omprehensively tha n other inst ruments with
2 Human Rights Committee, Genera l Comment No. 27, ‘Freedom of movement (Article 12)’, UN Doc.
CCPR/C/21/Rev. 1/Add.9, 2 November 1999, para. 8; and General Comment No. 15, ‘e position of
aliens under t he Covenant’, 11 April 1986, para . 5.
3 In its jud gements concern ing Art icle 3 of the ECHR, t he Europea n Court of Huma n Right s has
repeatedly held that States a re entit led to control the entry of al iens on their territory. See, for
example, ECtHR, Chahal vs t he United Kingdom, jud gement of 15 November 19 96, Applicat ion
No. 22414/93, para. 73; and El Boujaïdi vs France , judgement of 26 September 1997, Application No.
25613/94, para. 39.
4 For more discussions on the conict betwe en immigration control and human rights protec tion, see
Noll, G. and Vedsted-Hanson, J., ‘Non-Communit arians: Refugees and Asy lum Policies’, in: Alston,
Ph. (ed.), e EU and Human Rights, Ox ford University Press, Ox ford, 1998, pp. 359–410.
5 e right to work is r ecognised by, for example, Article 23 of t he UDHR, Article 8 of the CCPR,
Article 5(e)(i) of the CERD, Article 11 of the CEDAW, Artic le 32 of the CRC, A rticle 1 of the
e Personal Applicat ion of the Right to Work in the Age of Mi gration
Netherlands Q uarterly of Human R ights, Vol. 26/1 (2008) 45
the right to work.6 is study is therefore focused on the position of the CESCR and
its Committee, while al so taking into account other relevant international or regional
human rights instr uments and their monitoring bodies. While there may be dierent
understandings of what t he right to work means, the current study ex amines the
personal scope of the right to work i n the sense of Ar ticle 6 of the CE SCR, by which
the rig ht to work contai ns mainly the following aspects: access to work, free choice
in work, non-discrimi nation, access to vocational traini ng and employment services,
and employment security.7
Before disc ussing the right to work of dierent categories of non-nationals, this
article be gins by clarif ying the personal scope of the right to work in general w ithin
the framework of the CESCR .
2. THE PERSONAL SCOPE OF THE RIGHT TO WORK IN
GENERAL UNDER THE CESCR
2.1. THE PERSONAL SCOPE OF THE CESCR
Unlike many international or regional human rights instruments, the CESCR does
not clearly indicate whether t he Covenant applies to non-nationals, especia lly those
unlawfu lly present. Ot her human rights instruments such as the International
Covenant on Civil and Politic al Rights (CCPR), the European Convention of Human
Rights (ECHR), and the American Convention of Human R ights (AmCHR) clearly
state that all individuals within the State territory and subjec t to its jurisdiction enjoy
rights protected without discrim ination.8 As an opposite example, the European
Social Charter (ESC) sets clear lim itations on its application to non-nationals. e
ESC applies to nationals of the c ontracting States and to ‘ foreigners only in sofar as
they are nationals of other Parties lawf ully resident or worki ng regularly w ithin the
European Socia l Charter (revised), Article 15 of the African Charter on Human and Peoples’ Rights ,
and Article 6 of t he Protocol of San Salv ador to the American C onvention on Human Rights.
6 CESCR Commit tee, Genera l Comment No. 18: e Rig ht to Work (Article 6), UN Doc. E/C.12/
GC/18, 6 February 2 006, para.1.
7 For more discus sion on the concept and normative contents of t he right to work, see the CES CR
Committee , Genera l Comment No. 18. See also Cr aven, M.C.R ., e International Covenant on
Economic, Social, and Cultural Right s: A Perspect ive on its D evelopment, O xford University Press,
Oxford, 1998; Drzewicki, K., ‘e Right to Work and Rights in Work’, in: Eide, A., Krause, C . and
Rosas, A. (eds), Economic, Social and Cultural Rights: A Textbook, 2nd ed., Kluwer Law International,
e Ha gue, 2 001, pp. 223–243; Gomien, D., Harri s, D., and Zwaak, L., Law and Practice of the
European Conventi on on Human Rights and the Eu ropean Social Char ter, C ouncil of Europe
Publishing , Stra sbourg, 199 6; Samuel , L., Fundamental Social Rights: Case Law of the European
Social Ch arter, 2nd ed., Council of Europe Publish ing, Stras bourg, 2002; Siegel, R.L . ‘e Rig ht to
Work: Core Minimum Obligations’, in: Chapman, A. and Russell, S. (eds), Core Obligations: Building
a Framework for Econo mic, Social and Cultural R ights, Intersentia, A ntwerp, 2002, pp. 21–52.
8 See Article 2(1) of the CCPR; Article 1 of t he ECHR; and Artic le 1 of the AmCHR.

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