In recent years, advocates and scholars have made increasing efforts to situate undocumented migrants within the human rights framework. Amnesty International’s “Immigrants’ Rights are Human Rights Campaign” declares that “[a]ll immigrants, irrespective of their legal status,
In recent years, advocates and scholars have made increasing efforts to situate undocumented migrants within the human rights framework. Amnesty International’s “Immigrants’ Rights are Human Rights Campaign” declares that “[a]ll immigrants, irrespective of their legal status, have human rights.” The American Civil Liberties Union claims that “[n]umerous international human rights documents firmly establish the principle that no human being can be outside the protection of the law or ‘illegal’ [and] that discrimination and abuse based upon immigration status is a violation of human rights.” Human Rights Watch goes so far as to suggest that “a human rights framework strongly supports a program of earned legalization for undocumented immigrants in the US.” Even Eric Holder, the U.S. Attorney General, stated recently that “creating a pathway to earned citizenship for the 11 million unauthorized immigrants in this country... is a matter of... human rights.”In a similar vein, legal scholars have noted that “irregular migrants are entitled to the full range of human rights” and that “[m]ost human rights are guaranteed irrespective of an individual’s immigration status; they are a function of a person’s status as a human being, not as a citizen of a particular state.”
The assumption underlying these pronouncements is that international human rights law affords undocumented migrants substantial protection against the mistreatment, exploitation, and abuse they face in their host countries. They even suggest that the undocumented are recipients of specific rights under international human rights law, such as the right to non-discrimination based on immigration status and the right to regularize their status. In reality, the human rights framework’s protections of the undocumented are far less robust than these statements suggest. That is the problem this article takes up in greater detail.
It is understandable, given human rights law’s claims to universalism and individualism, that those seeking to assist migrants would turn to the human rights framework as a source of protection. The international treaties that comprise the current human rights regime were drafted as a response to the mass atrocities perpetrated during the Second World War. The international community set up this new legal structure to ensure that states would no longer be able to arbitrar