IV. THE LABOR MARKET AND CONDITIONS OF DISCRIMINATION AGAINST MIGRANT WORKERS
61. This chapter of the annual report of the Rapporteurship for Migrant Workers consists of an edited and abridged version of the report submitted to the Inter-American Court of Human Rights (hereafter the “Court”) by the IACHR. This report is connected with the request for Advisory Opinion OC-18 requested by the State of Mexico to clarify the scope of the right to equality and the principle of non-discrimination (Article II of the American Declaration of the Rights and Duties of Man and 1(1) and 24 of the American Convention on Human Rights) and how they apply to the labor rights of migrant workers in an irregular situation in the state where they live and work. The report of the IACHR was prepared by a team of experts headed by Juan E. Méndez Special Rapporteur, on Migrant Workers and their Families, Ariel Dulitzky, attorney of the IACHR Secretariat, and Andreas Feldmann and Helena Olea, members of the Rapporteurship’s team. Some students in the Master’s Program on Human Rights at Notre Dame University Law School also took part in the study. 
62. This chapter is divided into the following parts. The first section briefly analyzes the situations and obstacles that migrant workers contend with in the area of labor. It then examines the principle of nondiscrimination and the duties of states as regards human rights and how that extends to the area of labor. The fourth part discusses permissible limitations and restrictions on human rights and how such restrictions affect migrant workers where labor is concerned. Based on the analysis contained in the sections leading up to it, the fifth, and last, section identifies the fundamental labor rights in respect of which, in the opinion of the IACHR, it is not permissible to discriminate against migrant workers regardless of their immigration status.
63. Labor migration is a worldwide phenomenon that has a huge impact on a significant number of countries. According to the calculations of the International Organization for Migration (IOM) around 150-175 million people, something like three percent of the world’s population, reside either temporarily or permanently in another country.  Many of these people emigrate to escape situations of violence; however, most of these migrants leave their country fleeing poverty and lack of opportunity in search of a better future. The vast majority of these people migrate in search of jobs. A very small number leaves to study or to be reunited with relatives. According to the International Labour Organization (ILO), between 1965 and 1990 the number of migrants increased by almost 50 percent from 75 to 120 million. Of that number, almost three-quarters (70 to 80 million) were people who emigrated in search of work. A high though indeterminate number were undocumented people, in other words, people who migrate in an irregular manner without proper authority from the state they enter to. 
64. Better and more employment opportunities and disparity in living standards, salaries and social benefits (access to education, health services and pensions) between developed and developing countries have historically fueled migration. In this regard, even though the differences between rich and poor countries have always existed, in the past two decades the disparity has tended to widen. One aspect that best illustrates this trend concerns recent wage developments: broadly speaking, whereas in developed countries salary levels have tended to rise, in developing countries they have rather stagnated or visibly declined. As a result, the difference between the hourly wage in a developing country and a developed country (and between underdeveloped countries with different rates of development) has grown exponentially. For example, in 1996, a Mexican laborer could earn on average nine times more working in the United States than in his country of origin.  At the same time, economic hardship in several developing countries has led to a shortage of employment opportunities and a sharp slump in people’s purchasing power. Financial crises in many countries has also led to substantial state service cuts (e.g., health, education, housing, pensions), which has contributed to make people even poorer.
65. Against this backdrop, many people in developing countries have opted to emigrate. For many emigration represents a once-in-a-lifetime opportunity to improve their living conditions and economic situation, and to provide more development opportunities for their families. The families of migrant workers stand to benefit in two ways: those that migrate obtain certain benefits in receiving countries, such as education, health and better living conditions. Those who remain in their countries of origin, on the other hand, benefit from remittances –money sent by nationals who reside abroad to their country of origin– from their relatives. This money is generally used to pay for essential goods, health care, food, housing, and consumer goods; occasionally they are also transformed into capital goods (tools, investment). 
66. The enormous benefits that migrant workers and their families can obtain by finding a job in another country, coupled with the desperation caused by poverty and lack of opportunities in their countries of origin very often leads them to accept very difficult working conditions. It should be mentioned that migrant workers, in particular those who are largely unskilled are prepared to take jobs that nationals of the receiving country do not want because the conditions are too difficult, dangerous or strenuous.  Migrant workers and their families represent an especially vulnerable social sector that is usually subjected to abuse and systematic violations of their labor rights. These people are often unfamiliar with the law and the language in the receiving country and on a number of occasions have to face open hostility from the people and even the authorities of the receiving country. The situation is particularly serious in the case of undocumented persons whose immigration status exposes them to even more abuse. Owing to the particular circumstances of migrant workers, these people are described as being in a situation of structural vulnerability.
67. Unscrupulous employers in countries of origin very often take advantage of the vulnerability of migrant workers. For employers, the existence of workers prepared to accept the above-described conditions presents them with the opportunity to cut costs and, therefore, to make their products or services more competitive in the marketplace. Aware of the desperation of these people and the unprotected state in which they normally live, particularly from a legal standpoint, employers very frequently offer employment in conditions that fall along way short of safety and sanitation standards and pay very low salaries, normally less than the legal minimum wage. Furthermore, they deny them labor benefits, such as health or industrial accident insurance and restrict their freedom of association. Situations of exploitation in which the employer forces migrant workers to work exhausting hours without rest, or in which they simply do not pay them for their work, are also common. Accusations of physical mistreatment and intimidation –such as threatening to report undocumented persons to the authorities– to discourage complaints of abuse are also reported. 
68. Some migrants are subjected to even worse conditions than the ones described above. These people are victims of the crime of human trafficking. This crime is committed when a person or an organization facilitates, by means of coercion or deceit, the irregular entry of another person into a state of which they are not a national, and once there forces them to engage in an economic activity in payment for having helped them to travel to the country of destination. Victims of trafficking are usually obliged to perform work in particularly difficult conditions and are subjected to a series of abuses. Some of these persons are even made to endure slave-like conditions, as through intimidation or physical coercion there liberty is restricted and they are prevented from leaving their place of work or residence; furthermore they are not paid for their labor. Trafficking victims may also suffer physical and sexual assault. Human trafficking is a criminal activity carried out by organizations engaged in illicit business ventures, in particular sexual exploitation. Women and children are the chief victims of this practice.
69. The vulnerability of migrant workers is further accentuated as a result of certain discriminatory practices on the part of the authorities in receiving countries. The people and authorities of many such countries adopt hostile attitudes to migrant workers and their families derived from prejudice-based national conceptions designed to exclude them.  As if to reflect such discriminatory practices, antagonism, and prejudice in many receiving countries abuses committed in the work place –and elsewhere– against migrant workers are not properly investigated or punished by the competent authorities. By the same token, in many receiving countries laws are passed and practices maintained that are harmful to foreign workers, including openly discriminatory rules designed to prevent their insertion in the labor market.  In this connection, in some cases discriminatory policies and practices fomented by some states against migrant workers can have a negative effect by depressing the labor market. This situation affects the employment possibilities of all workers irrespective of their immigration status or whether they happen to be nationals or foreigners, since it creates a surplus of labor. Some unscrupulous employers take advantage of the existence of a large numbers of jobless people willing to work clandestinely by restricting wages and benefits for all their workers.
70. Given the plight of migrant workers, the Rapporteurship believes it pertinent to conduct an analysis of the labor standards that apply to these persons, in other words, examine the labor rights of migrant workers. On this point, the Rapporteurship considers that any evaluation of the labor conditions of migrant workers should be founded on an in-depth analysis of the connection between the observance of fundamental rights in the area of labor and the principle of non-discrimination and the right to equal protection of the law. The section that follows contains a number of considerations on these points.
71. Non-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitute a founding, basic, general and fundamental principle relating to the international protection of human rights.  Thus, the Preamble of the American Declaration of the Rights and Duties of Man says, “All men are born free and equal, in dignity and in rights “. Article II of the Declaration adds, “All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor “  . In that same connection, international treaties on human rights contain these basic principles. Thus, Article 2, paragraph 1, of the International Covenant on Civil and Political Rights obligates each State party to respect and ensure to all persons within its territory and subject to its jurisdiction the rights recognized in the Covenant without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 
72. The fundamental principles of international law of human rights of equality and non-discrimination are so crucial that all references to human rights contained in the Charter of the United Nations are tied to the principle of non-discrimination. Article 1 of the Charter provides that one of the purposes of the United Nations is
73. Furthermore, Article 55 of the Charter refers specifically to human rights and says,
74. In the context of the Charter of the United Nations the concept of universal respect for human rights is inalienably linked to the principle of non-discrimination. That is, inclusion by opposition to exclusion is a distinctive feature of the international system of human rights founded in the framework of the United Nations.  Furthermore, the Charter of the United Nations requires states to ensure the effectiveness of rights and freedoms. 
75. In keeping with the inalienability of respect for human rights and non-discrimination, in the Charter of the OAS, the American States proclaim the fundamental rights of the individual without distinction as to race, nationality, creed, or sex.  In reaffirmation of this principle, the Preamble of the recently adopted Inter-American Democratic Charter says that the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights contain the values and principles of liberty, equality, and social justice that are intrinsic to democracy. In particular, Article 9 of the Democratic Charter states that:
76. Ultimately, the international system of human rights has been created and functions on the basic premise of equality among all human beings, by virtue of which all discrimination is precluded from that system. In an Advisory Opinion, the Inter-American Court noted that
77. The international jurisprudence and practice on which the Inter-American Court has relied on different occasions have elevated this principle of non-discrimination to special status in international law. Thus, the International Court of Justice found that prohibition of racial discrimination constituted an obligation erga omnes  . The same Court was to say a year later that the enforcement of “distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter” of the United Nations. 
78. From that perspective, there is consensus in the international community that prohibition of racial discrimination,  as well as of directly associated practices, such as slavery, genocide or apartheid, are obligations erga omnes.  Furthermore, self-determination has been recognized as a right erga omnes.  The fact that prohibition of racial discrimination and of related practices are jus cogens means that, given their mandatory nature, “these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law”  .
79. Except on the grounds of race, hitherto consensus has been lacking in the international community to consider prohibition of discrimination for other reasons; however, that does not undermine the fundamental and basic importance of the above rules in the body of international law as a whole. Prohibition of discrimination has not undergone the same development in terms of promotion of laws. However, we can say that there is a clear prohibition of discrimination on the basis of sex and religion, because they are contained in the Charter of the United Nations  and of the OAS  ; this, therefore, may be regarded as representative of the consensus of the international community regarding their fundamental importance. Further, prohibition of discrimination on the basis of language contained in the Charter of the United Nations  and of nationality in the Charter of the OAS  , bear the same importance.
80. The principle of non-discrimination is so basic that, as described below, even when human rights treaties empower states parties to adopt in exceptional situations provisions that suspend certain rights, it is required, inter alia, that such provisions not involve discrimination on the ground of race, color, sex, language, religion, or social origin. 
81. Because of their basic and general nature, the principles of non-discrimination, of equality before the law, and of equal protection of the law, have led to the adoption of specific treaties in this area, such as the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, the International Labour Organization (ILO) conventions on discrimination in employment and occupation and on equal pay, and the UNESCO Convention against Discrimination in Education. At the inter-American level there are the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women and the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities. In addition, significant in the history of the codification of human rights was the early adoption of instruments designed to eliminate the most serious violations of the principles of equality and non-discrimination, such as the 1949 Convention on the Prevention and Punishment of the Crime of Genocide, the 1952 Convention on the Political Rights of Women or the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, all of which predate the general human rights treaties.
82. By the same token, and to underscore the importance of equality and non-discrimination, human rights treaties expressly provide for the principle of either non-discrimination or equality in articles relating to given categories of human rights.  For example, Article 8(1) of the American Convention says that every person has the right to a hearing, with due guarantees by a competent tribunal for the determination of his/her rights and obligations of, among others, a labor nature. Clause 2 of the same Article adds that during the proceedings, every person is entitled, with full equality, to a range of minimum guarantees. The Inter-American Court has ruled that those minimum guarantees apply to every type of proceeding including those involving labor matters.  In this sense, Article 14 of the International Covenant on Civil and Political Rights says, “All persons shall be equal before the courts and tribunals “. 
83. In the opinion of this Court, for “the due process of law” a defendant must be able to exercise his rights and defend his interests effectively and in full procedural equality with other defendants.  Given the importance of equality as an element of due process, the Court has said,
84. The Court has clarified more specifically that Article 24 de la American Convention recognizes the principle of equality before the law. Thus, the general prohibition against discrimination contained in Article 1(1) “extends to the domestic law of the States Parties, permitting the conclusion that in these provisions the States Parties, by acceding to the Convention, have undertaken to maintain their laws free of discriminatory regulations “. 
85. The Court has said that the meaning of the term discrimination employed by Article 24 must, then, be interpreted by reference to the list enumerated in Article 1(1). If a person seeking the protection of the law in order to assert rights which the Convention guarantees finds that he/she is unable to do so for any of the reasons mentioned in Article 1(1), that person is being discriminated against and, hence, is not receiving equal protection before the law, in violation of Articles 24 and 1(1). 
86. It is essential to mention that under Article 24 of the Convention “protection of the law consists, fundamentally, of the remedies the law provides for the protection of the rights guaranteed by the Convention “  . The Court has interpreted those remedies as being the ones arising from Articles 8 and 25 of the Convention. This Court has repeated that it is not sufficient that such recourses exist formally, but that they must be effective;  that is, they must give results or responses to the violations of rights established in the Convention. In other words, every person has the right to a simple and prompt recourse or to any effective recourse before competent judges or tribunals that protects him/her against the violation of his fundamental rights.  This guarantee “constitutes one of the basic pillars, not only of the American Convention, but also of the rule of law in a democratic society according to the Convention”.  Moreover, as the Court has also indicated, those remedies which prove illusory, due to the general situation of the country or even the particular circumstances of any given case, cannot be considered effective  .
87. Given that neither the American Convention nor the Charter of the OAS provide a definition of the term discrimination, one may rely on the definitions contained in the International Convention on the Elimination of All Forms of Racial Discrimination and in the Convention on the Elimination of All Forms of Discrimination against Women as a basis to argue that discrimination is any distinction, exclusion, restriction or preference which is based on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. 
88. From the above definition it follows that there is no discrimination if the difference in treatment has a legitimate purpose when the classifications selected are based on substantial factual differences and there exists a reasonable relationship of proportionality between these differences and the aims of the legal rule under review  . The Court has found, as have other international agencies and tribunals,  that “not all differences in treatment are in themselves offensive to human dignity”  . In this regard, the Court noted that a difference in treatment ‘is only discriminatory when it “has no objective and reasonable justification.”’ There exist certain factual inequalities that may legitimately give rise to inequalities in legal treatment that do not violate principles of justice. The Court held that,
89. The Commission is of the view that distinctions based on grounds explicitly enumerated under pertinent articles of international human rights instruments are subject to a particularly strict level of scrutiny whereby states must provide an especially weighty interest or a compelling social need and rigorous justification for the distinction, as well as showing that the measure adopted is the least restrictive possible.  Whatever the case, the Commission considers that there is a strong presumption that any distinction based on one of the grounds mentioned in Article 1 of the Convention will be incompatible with the treaty.
90. Furthermore, any distinction that affects the full exercise of rights contained in human rights treaties must meet the same criteria or parameters in order to be compatible with the international obligations of the states parties. The Court has said that Article 1(1) of the American Convention imposes on the States Parties the obligation to respect and guarantee the free and full exercise of the rights and freedoms recognized therein without any discrimination. Any treatment that can be considered to be discriminatory with regard to the rights enshrined in the Convention is per se incompatible with that instrument.  In principle, human rights treaties apply to all individuals under the jurisdiction of the states parties without any distinction whatever. Thus, for example, Article 1 of the American Convention stipulates that the States Parties to this Convention undertake to respect the rights and freedoms recognized therein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms. Accordingly, at least basic human rights should be respected without any distinction.  It has been rightly said that the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens.  Therefore, any distinctions established in the observance and guarantee of basic fundamental rights should, insofar as they constitute an exception to a basic rule, be applied in a restricted manner and the meet the conditions mentioned in the foregoing paragraph, without prejudice to the fact that some international instruments expressly provide for certain distinctions.  Even in such cases, permissible distinctions do not eliminate obligations under the overall system of protection of human rights. 
91. The principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by treaties.  The Court has said that “such distinctions may serve as an instrument of protection for those who might need protection in accordance with their degree of weakness or helplessness”.  Such measures are perfectly compatible with conventional provisions.  In this connection, one can cite Article 1(4) of the International Convention on the Elimination of All Forms of Racial Discrimination, which provides, Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.
92. Ultimately, all human rights treaties must be interpreted and applied in such a way as to protect the basic rights of individuals without discrimination of any kind. This basic precept in turn is based upon the fundamental premise that human rights protections are derived from the attributes of a person’s personality and by virtue of the fact that he or she is a human being, and not because he or she is the citizen of a particular State. These basic human rights protections under human rights treaties constitute obligations that states of the Americas must guarantee to all persons within their authority and control and are not dependent for their application upon such factors as a person's citizenship, nationality or any other factor, including immigration status. 
C. Permissible limitations and restrictions on human rights
93. The foregoing concepts notwithstanding, in analyzing the case of migrant workers it is important to consider the possibility that certain labor-related fundamental human rights are restricted by reason of the immigration status of these persons. In this connection it is necessary to examine the express limits in that regard contained in human rights treaties.
94. The human rights enshrined in human rights treaties are susceptible to reasonable regulation. The exercise of some protected rights may even be subject to legitimate restrictions. For example, various human rights treaties mention valid grounds for the legitimate restriction of rights, including freedom of conscience and religion, freedom of thought and expression, right of assembly, freedom of association, freedom of movement and residence, right to found trade unions and to join the one of one’s choosing, right of access to public hearings in criminal trials, and right to life. 
95. The restrictions that may be imposed on the exercise of human rights must meet certain requirements of form, which depend upon the manner in which they are expressed. They must also meet certain substantive conditions, which depend upon the legitimacy of the ends that such restrictions are designed to accomplish.  In this regard, Article 29(2) of the Universal Declaration of Human Rights as a guiding instrument in this area provides,
96. The most usual formal limit is when the restriction on the right in question is prescribed by law. This should be understood “as only a law that has been passed by democratically elected and constitutionally legitimate bodies and is tied to the general welfare may restrict the enjoyment or exercise of the rights or freedoms of the individual“.  A law must be formulated with sufficient precision to enable the citizen to regulate his conduct and to foresee the consequences which a given action may entail. 
97. The Court has found that in first place all restrictions on rights must be judged by reference to the legitimate needs of democratic societies and institutions.  Accordingly, “the just demands of democracy must consequently guide the interpretation” of permissible restrictions.  Furthermore, following the example of its European counterpart, the Court has found that the requirement that the restrictions should be “necessary,” while not synonymous with “indispensable,” implied the existence of a 'pressing social need' and that for a restriction to be “necessary” it is not enough to show that it is “useful,” “reasonable” or “desirable.”  . In other words, the restrictions must be “required by a compelling governmental interest.” Hence if there are various options to achieve this objective, that which least restricts the right protected must be selected. Given this standard, it is not enough to demonstrate, for example, that a law performs a useful or desirable purpose; that is, the restriction must be proportionate and closely tailored to the accomplishment of the legitimate governmental objective necessitating it. 
98. Furthermore, permissible limitations on rights should proceed from the need to protect the rights guaranteed under human rights treaties, including the right to equality and non-discrimination.  Accordingly, restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner.  This implies that all the considerations in the foregoing section apply in the interpretation of permissible limitations.
99. Finally, it is essential to mention that no permissible limitation on a right may entail the total denial of that right. In other words, the exercise of a right may be regulated, limited, or conditioned, but in no circumstances may it be converted into a mere illusion on the pretext of its limitation.
100. There are two very important aspects to consider in any analysis. Immigration policy design and implementation  and labor market regulation  are legitimate objectives of the State. In order to achieve these objectives states may adopt measures that lead to the restriction or limitation of certain rights, provided they adhere rigidly to the standards mentioned above, namely that: (1) certain rights inalienable; (2), there are rights that are exclusively reserved for citizens; (3) other rights are conditioned to documented immigrant status, such as those connected with freedom of movement and residence; (4) certain rights may be restricted provided the following conditions are met: a) the restriction must be determined by law; b) it must respond to an explicit legitimate state interest; c) the restriction must be reasonably related to a legitimate objective; and, d) there are no other means less onerous to those affected for achieving those ends.
101. In the end, the OAS Member States are obliged to guarantee the rights under the Declaration, the Convention, and any other treaty to which they may be party to all individuals falling within their authority and control, with the onus falling upon the State to prove the existence of a provision or permissible reservation explicitly limiting or excluding the application of some or all of the provisions of the instrument to a particular class of individuals, such as aliens. This means that the immigration status of individuals may prove to be a factor in the evaluation of the manner in which the State is able to give adequate effect to the rights enshrined in the Declaration or the Convention. However, immigration status can never serve to exclude individuals from the basic protections afforded them by international human rights law.
D. Superiority of certain labor rights
102. A worker is an individual who performs a physical or intellectual activity for an employer -natural or legal person- in the conditions as to time, place and way that the employer tells them. The asymmetry in the employer-worker relationship explains the development of national and international standards that seek to regulate the conditions of this contractual relationship, by establishing rights and obligations for workers and employers. The aim of labor standards and procedures is to guarantee equitable relations for workers and employers. The domestic law of each country contains detailed protections for labor rights. Broadly speaking, domestic legislations contain a separate body of rules on labor relations. Many have special labor courts and specific procedures.
103. At the international level, in addition to being protected by general instruments on human rights, labor rights have undergone special development in the framework of ILO. This entity has conducted a vast amount of research and work on international law in this area, both on individual aspects of labor law and general labor rights, and on specific situations and conditions of labor.  In the course of its activities the ILO adopted the Declaration on fundamental principles and rights at work. In that declaration ILO recalls that the labor principles and rights developed in Conventions have been recognized as fundamental, and even if they have not ratified the Conventions in question, the member states have an obligation arising from their membership in the ILO, to respect, to promote and to realize those rights and principles. 
104. Furthermore, among all the rights they protect, international instruments on human rights also include the right to work and other labor rights.  Probably the broadest range of labor rights in the human rights treaties brought into being by the United Nations is found in the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CTM), which enters into force on April 1, 2003.
105. An examination of the evolution of international human rights law and international labor law reveals the existence of a group of fundamental labor rights that derive from, and constitute a fundamental core of, labor law. These fundamental labor rights are essential to ensure and protect the dignity and well-being of workers. Fundamental labor rights ensure for the workers the possibility to engage in a paid activity in fitting and fair conditions, for which they receive a wage that must enable them to afford a decent life for themselves and their families. In other words, protection and guarantee of the right to work is a way of ensuring the right to life. Furthermore, work must be a form of realization and an opportunity for the worker to deploy his or her abilities and potential with a view to achieving full development as a human being. Various theoretical approaches to the law, political science, and economics recognize in work one of the fundamental pillars of human and social development.  In light of the above, fundamental labor rights must be ensured and protected.
106. International human rights law recognizes a broad range of labor-related rights. With the exception of the above-mentioned ILO Declaration, thus far not attempt has been made at a systematization of such rights in order to place them in a hierarchical order, according to which some of these labor rights are regarded as fundamental and belong among those for which discrimination is impermissible, even on the grounds of immigration status.
107. Accordingly, in the brief it submitted to the Court for the processing of Advisory Opinion OC-18, the IACHR said that in its opinion the fundamental labor rights are: prohibition of forced or compulsory labor; the right to a salary; the right to form and join trade unions; elimination of discrimination in employment and occupation; and abolition of child labor. Following, is an analysis of each of these rights.
Prohibition of forced or compulsory labor
108. In accordance with the right to liberty applied to the right to work, no one may be compelled to work in a forced of compulsory manner. Work is an expression of personal liberty and on that premise an individual may not be required to perform labor. Exceptions to this prohibition are criminal penalties that include a labor component, the obligation to aid the victims of an emergency or a natural disaster, and any compulsory social work that is part of the civil duties of the citizens of a state. In all other cases work must be voluntary. 
Right to a salary
109. As mentioned, one of the elements of employment is the payment of a salary in exchange for the work performed. The right to a salary includes the principle of equal remuneration for work of equal value.  This entails the prohibition of discrimination in salary among workers who perform the same activity. The right to a salary also includes the right to just and favorable remuneration for the labor performed. This second element incorporates the concept of equity between pay and work. Finally, the salary must ensure a decent living for workers and their families and be determined according their capacity and skill. 
Right to form and join trade unions
110. The right to form and join trade unions derived from freedom of association and the right to work, ensures for workers the possibility to join or form trade unions with a view to protecting their rights and interests.  Racial discrimination is expressly prohibited in the exercise of this right. Furthermore, this right gives rise to the right to collective bargaining on wages and conditions of labor. 
Elimination of discrimination in employment and occupation
111. Workers who perform the same labor are subject to the same conditions of employment and occupation.  States parties must adopt measures designed to eliminate discrimination with respect to conditions of employment and occupation. Conditions of employment cover: safety and hygiene in the workplace,  the opportunity to be promoted based on seniority and competence, rest, hours of work, vacations, and protection in the termination of employment.  Conditions of occupation include: equal access to employment opportunities, minimum working ages, restriction of home work, and restriction of night work. 
Abolition of child labor
112. Minors shall not perform any work that is hazardous or dangerous, interferes with their education, or is harmful to their health or physical development. This right gives rise to concrete obligations for the state: provide for a minimum age for employment; provide for appropriate regulation of the hours and conditions of employment for children; and ensure compliance with these labor standards. 
113. The Commission says in its brief that the principle of non-discrimination in international human rights law recognizes the equality of all individuals and imposes certain prohibitions on states. Distinctions based on gender, race, religion, or nationality are specifically prohibited, at least as regards the enjoyment and exercise of basic rights enshrined in international instruments. With respect to these prohibited classifications, any distinction made by states in the dispensation of benefits and privileges must be strictly justified by a legitimate interest of the state or society, which, furthermore, cannot be served by non-discriminatory means. International human rights law not only prohibits deliberately discriminatory practices and polices, but also any whose impact on these categories of persons is discriminatory, even though discriminatory intent might not be provable.
114. Immigration status, understood as the regular or irregular presence of an alien in another country in accordance with the domestic laws of that country, is not one of the categories expressly prohibited by the principle of equality. Accordingly, in principle, states may establish distinctions in the enjoyment of certain benefits between its citizens, aliens with regular status, and undocumented aliens. However, the Commission holds that the principle of progressive development of the standards of international human rights law requires a detailed examination of the following factors: 1) the content and scope of the rule that discriminates between categories of persons; 2) consequences of that discriminatory treatment for persons not favored by the state’s policy or practice; 3) possible justifications offered for this different treatment, in particular how they relate to a legitimate state interest; 4) a reasonable relationship of proportionality between the legitimate interest and the discriminatory practice or policy; 5) existence or non-existence of less harmful means or methods for people to achieve those same legitimate ends. The Commission concludes that under international law there is a range of fundamental labor rights. In light of their fundamental nature, discrimination among workers in the enjoyment and exercise of those rights is not permissible. These rights include prohibition of forced or compulsory labor; the right to a salary; the right to form and join trade unions; elimination of discrimination in employment and occupation; and abolition of child labor. Based on the foregoing, a state cannot discriminate between documented or regular workers and undocumented or irregular workers when it comes to the protection and guarantee of their fundamental labor rights.
 Collaborators include Javier Mariezcurrena, Gisela De León, Paulina Vega-González, Juan Pablo Albán, and Denise Hirao.
 IOM. World Migration Report 2000. URL: http://www.iom.int/iom/Publications/entry.htm
 Stalker, Peter. Workers Without Frontiers. The Impact of Globalization on International Migration. Boulder CO.: Lynne Rienner Publishers, 2000, p.6.
 Stalker, Op. cit., pp. 1-23
 Durand, Jorge, and Douglas S. Massey. 1992. “Mexican Migration to the United States: A Critical Review.” Journal of Latin American Studies 27 (2), pp. 40-3
 Cairncross, Frances. 2002. “The Longest Journey.” The Economist (November 2) pp, 3-5.
 Stalker, Peter. 2001. The No-Nonsense Guide to International Migration. Oxford: New Internationalist Publications pp.121-133; Stephen Castles and Mark J. Miller. 1993. The Age of Migration. New York: The Guilford Press, pp.45-46. See also Second Progress Report of the Rapporteurship on Migrant Workers and their Families, Inter-American Commission on Human Rights (Chapter IV Migration and Human Rights) http://www.cidh.org/annualrep/2000sp/cap.6.htm
 See Second Progress Report of the Rapporteurship on Migrant Workers and their Families, Inter-American Commission on Human Rights (Chapters I and V). http://www.cidh.org/annualrep/2001sp/cap.6.htm
 Human Rights Watch. World Report. Special Issues and Campaigns: Racial Discrimination and Related Intolerance 2001. URL: http://www.hrw.org/wr2k1/special/racism.html#migrants; United Nations. Working Group of Intergovernmental Experts on Human Rights of Migrants, Report E/CN.4/AC.46/1998/5, para 28; United Nations, Human Rights of Migrants, Report E/CN.4/2000/82, para 13 and 54.
 UN Human Rights Committee, General Comment Nº 18 (Non-Discrimination), para. 1.
 Both the Inter-American Court of Human Rights and the IACHR have said that the American Declaration is a source of international obligations for the member states of the OAS. Inter-American Court of Human Rights, Advisory Opinion OC-10/89, Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-10/89 of July 14, 1989, Inter-Am.Ct.H.R. (Ser. A) No. 10 (1989), paras. 35-45; IACHR, James Terry Roach and Jay Pinkerton v. United States, Case 9647, Res. 3/87, September 22, 1987, Annual report 1986-1987, paras. 46-49, Rafael Ferrer-Mazorra et al. v. United States of America, Report N° 51/01, Case 9903, April 4, 2001. See also Article 20 of the Statute of the Inter-American Commission on Human Rights. The Universal Declaration of Human Rights contains similar provisions at Articles 1 (“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood “), 2 (“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”), and 7 (“All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination”).
 See in this connection, Article 1(1) of the American Convention on Human Rights, and Article 2 of the Convention on the Rights of the Child.
 See in this connection Article 13 (1. The General Assembly shall initiate studies and make recommendations for the purpose of: b. promoting international co-operation in the economic, social, cultural, educational, and health fields, and assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion) and Article 76 (The basic objectives of the trusteeship system, in accordance with the Purposes of the United Nations laid down in Article 1 of the present Charter, shall be: c. to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion, and to encourage recognition of the interdependence of the peoples of the world).
 See, Kevin Boyle and Anneliese Baldaccini, International Human Rights approaches to Racism, in Discrimination and Human Rights, Ed. by Sandra Fredman, p. 138.
 Article 55(c).
 Article 3(l). See also Article 45 (The Member States, convinced that man can only achieve the full realization of his aspirations within a just social order, along with economic development and true peace, agree to dedicate every effort to the application of the following principles and mechanisms: a) All human beings, without distinction as to race, sex, nationality, creed, or social condition, have a right to material well-being and to their spiritual development, under circumstances of liberty, dignity, equality of opportunity, and economic security)
 Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84 of January 19, 1984, Inter-Am.Ct.H.R. (Ser. A) Nº 4 (1984), para. 55.
 International Court of Justice, Barcelona Traction, Light and Power Co, ICJ Reports 1970
 International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1970, 3 at 70.
 See James Crawford, The International Law Commission's Articles on State Responsibility, Introduction, Text and Commentaries, p.246 et seq.
 See, for example, ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Judgment of 11 July 1996, para. 31.
 International Court of Justice, East Timor (Portugal v. Australia), I.C.J. Reports, 1995, para. 29.
 International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, 8 July 1996, para. 79.
 Articles 1(3) and 55(c).
 Articles 3(l) and 45(a).
 Articles 1(3 ) and 55(c).
 Article 3(l).
 Article 27 of the American Convention. See UN Human Rights Committee, General Comment Nº 18 (Non-Discrimination), para. 2.
 Id., paras. 5 and 6. Thus Article 14, paragraph 1 of the International Covenant on Civil and Political Rights recognizes that all persons shall be equal before the courts and tribunals, and paragraph 3 of the same Article provides that in the determination of any criminal charge against him, everyone shall be entitled to the minimum guarantees mentioned in said Article. Similarly, Article 25 provides equal participation for every citizen in public affairs without any of the distinctions mentioned in Article 2. directly or through freely chosen representatives. Article 23, paragraph 4 stipulates that States Parties shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. As regards children, Article 24 provides that every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.
 Inter-Am. Ct. H.R., Baena Ricardo et al. Case, Judgment of February 2, 2001, para. 125.
 See UN Human Rights Committee, General Comment 13 Equality before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law (Article 14).
 Inter-Am. Ct. H.R., The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law. Advisory Opinion OC-16/99 of October 1, 1999, para. 117.
 Id., para. 119.
 Inter-Am.Ct.H.R., Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84 of January 19, 1984, para. 54.
 Inter-Am.Ct.H.R., Exceptions to the Exhaustion of Domestic Remedies (Arts. 46(1), 46(2)(a) and 46 (2)(b) of the American Convention on Human Rights), Advisory Opinion OC-11/90 of August 10, 1990, (Ser. A) Nº 11 (1990), para. 22.
 Inter-Am.Ct.H.R., Exceptions to the Exhaustion of Domestic Remedies (Arts. 46(1), 46(2)(a) and 46 (2)(b) of the American Convention on Human Rights), Advisory Opinion OC-11/90 of August 10, 1990, (Ser. A) No. 11 (1990), para. 23.
 Cesti Hurtado Case, Judgment of September 29, 1999. Series C Nº 56, para. 125.
 Cantoral Benavides Case, Judgment of August 18, 2000. Series C Nº 69, para. 163.
 Durand and Ugarte Case, Judgment of August 16, 2000. Series C No. 68, para. 101.
 Inter-Am.Ct.H.R., Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 of the American Convention on Human Rights), Advisory Opinion OC-9/87 of October 6, 1987, Series A, Nº 9, para. 24.
 Id., para. 7.
 Inter-American Court of Human Rights, Advisory Opinion OC-17/2002, of August 28, 2002, Legal status and human rights of the child, para. 47.
 UN Human Rights Committee, General Comment Nº ….. para. European Court of Human Rights, Case of Willis v. The United Kingdom, Judgment of 11 June, 2002, para. 39; Case of Wessels-Bergervoet v. The Netherlands, Judgment of 4th June, 2002, para. 42; Case of Petrovic v. Austria, Judgment of 27th of March, 1998, Reports 1998-II, para. 30; Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v. Belgium, Judgment of 23rd July 1968, Series A 1968, para. 34.
 Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84 of January 19, 1984, Inter-Am.Ct.H.R. (Ser. A) No. 4 (1984), supra note 36, para. 56.
 Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84 of January 19, 1984, Inter-Am.Ct.H.R. (Ser. A) Nº 4 (1984), supra note 36, para. 57.
 Numerous pertinent domestic and international courts have subjected governments to an enhanced burden to justify distinctions or classifications that are based upon such grounds as nationality, race, color or gender. See, for example, IACHR, Report Nº 4/01 María Eugenia Morales de Sierra, Case 11.625 (Guatemala), January 19, 2001, para. 36 (statutory distinctions based on status criteria, such as, for example, race or sex, therefore necessarily give rise to heightened scrutiny); Repetto, Inés, Supreme Court of Justice (Argentina), November 8, 1988, Judges Petracchi and Bacqué, para. 6 (finding that every distinction between nationals and foreigners, with respect to the enjoyment of rights recognized in the [Argentine] Constitution, “is affected by a presumption of unconstitutionality”, and therefore whoever sustains the legitimacy of the distinction “should prove the existence of an urgent State interest in order to justify [the distinction] and it is not sufficient merely to argue that the measure is ‘reasonable.’”); Palmore v. Sidoti, 4666 US 429 (1984) (holding that racial classifications “are subject to the most exacting scrutiny; to pass constitutional muster, they must be justified by a compelling governmental interest and must be necessary […] to the accomplishment of their legitimate purposes.”); Loving v. Virginia, 388 US 1, 87 (1967) (concluding that “at the very least” the Equal Protection Clause of the US Constitution “demands that racial classifications, especially suspect in criminal statutes, be subjected to the most rigorous scrutiny.”); Eur. Court H.R., Abdulaziz v. United Kingdom, Judgment of 28 May 1985, Ser. A Nº 94, para. 79 (stating that “the advancement of the equality of the sexes is today a major goal in the Member States of the Council of Europe. This means that very weighty reasons would have to be advanced before a difference of treatment on the ground of sex could be regarded as compatible with the [European] Convention.)”. Constitutional scholars have expressed similar views. See, e.g., Constitutional Law 142 (D. Farber, W. Esckridge & P. Frickey eds., 1998).
Proposed Amendments to the Naturalization Provisions of the
Constitution of Costa Rica.
 See in this connection, Declaration on Human Rights of Individuals Who Are Not Citizens of the Countries in which They Live. Adopted by the UN General Assembly in resolution 40/144, of 13 December 1985.
 UN Human Rights Committee, General Comment 15 (The position of aliens under the Covenant) para. 2.
 See for example, Article 23 of the American Convention, which refers to citizens rather than individuals and permits distinction based on nationality, among other grounds (Article 23(1) and (2)); or Article 1(2) of the International Convention on the Elimination of All Forms of Racial Discrimination (This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens). However, see Committee on Elimination of Racial Discrimination General, Recommendation XI on non-citizens, A/48/18, para. 3 (article 1, paragraph 2, must not be interpreted to detract in any way from the rights and freedoms recognized and enunciated in other instruments, especially the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights) and General Recommendation XX on Article 5, A/51/18, para. 3 (many of the rights and freedoms mentioned in article 5 are to be enjoyed by all persons living in a given State, such as the right to equal treatment before tribunals; some others are the rights of citizens, such as the rights to participate in elections, to vote, and to stand for election).
 See Human Rights Committee, General Comment Nº 18, para. 10.
 The Court has specifically said that “given the status of children, the difference in treatment accorded to adults and minors is not per se discriminatory in the sense prohibited by the Convention. On the contrary, its serves the purpose of enabling the full exercise of the rights recognized for the child.” Id., para. 54.
 IACHR, Annual Report 1999, Considerations Regarding the Compatibility of Affirmative Action Measures Designed to Promote the Political Participation of Women with the Principles of Equality and Non-Discrimination. UN Human Rights Committee, General Comment Nº 18, supra, para 10.
 Human Rights Committee, General Comment Nº 15, para. 4.
 See, for example, American Convention, Article 12(3), (Freedom to manifest one's religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others); Article 13(2), (The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure: a) respect for the rights or reputations of others; or, b) the protection of national security, public order, or public health or morals); or Article 16(2), (The exercise of this right shall be subject only to such restrictions established by law as may be necessary in a democratic society, in the interest of national security, public safety or public order, or to protect public health or morals or the rights and freedoms of others).
 Inter-Am. Ct. H.R., Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Articles 13 and 29 of the American Convention on Human Rights), Advisory Opinion OC-5/85 of November 13, 1985, (Ser. A) Nº 5 (1985), para. 37.
 Inter-Am. Ct. H.R., Baena Ricardo Case, supra, citing The Word “Laws” in Article 30 of the American Convention on Human Rights, Advisory Opinion OC-6/86 of May 9, 1986, (Ser. A) Nº 6 (1986), para. 37.
 European Court of Human Rights, The Sunday Times v. United Kingdom, Judgment of 26 April 1979, Series A, v. 30, para. 49.
 Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 of the American Convention on Human Rights), Advisory Opinion OC-5/85 of November 13, 1985, (Ser. A) Nº 5 (1985), para. 42.
 Id., para 44.
 Id., para. 45, citing Eur. Court H. R., The Sunday Times case, Judgment of 26 April 1979, Series A Nº 30, para. 59, pp. 35-36
 Id. citing Eur. Court H. R., The Sunday Times case, supra, para. 62, p. 38; See also Eur. Court H. R., Barthold judgment of 25 March 1985, Series A Nº 90, para. 59, p. 26).
 UN Human Rights Committee, General Comment 22, para. 8.
 See, for example, IACHR Report Nº 51/00 Rafael Ferrer-Mazorra et al. Case 9903 (United States), para. 177, 179 and 242.
 See, for example, Eur. Court H. R., Abdulaziz v. UK (1985) 7 EHRR 491 para. 85.
 In the framework of the ILO 184 Conventions and 194 Recommendations have been adopted.
 See the ILO Declaration on fundamental principles and rights at work, adopted at the 86th meeting in Geneva, June 1998.
 See Articles 6, 7 and 8 of the International Covenant on Economic, Social and Cultural Rights (PIDESC); Articles 8 and 22 of the International Covenant on Civil and Political Rights (PIDCP); Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD); Article 11 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); Articles XIV, XV and XXII of the American Declaration of the Rights and Duties of Man (American Declaration); Articles 6 and 16 of the American Convention on Human Rights (American Convention); Articles 6, 7 and 8 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador).
 See Philip Harvey, Human Rights and Economic Policy Discourse: Taking Economic and Social Rights Seriously, 33 Columbia Human Rights Law Review, Spring 2000, p. 390-391.
 See Article 8.3 a) of the PIDCP, Article 6.1 of the PIDESC, Article 6.2 of the American Convention, Article 11 of the CTM, ILO Convention 29 on Forced Labor, ILO Convention 105 on Abolition of Forced Labor, Programme of Action of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, para. 190.
 See Committee for the Elimination of Discrimination against Women, General Recommendation No. 13; ILO Convention 100; and ILO Recommendation 151 on migrant workers, para. 2 e).
 See Article 7 a) of the PIDESC; Article 5 e) i) of the CERD; Article 11 d) of the CEDAW; Article XIV of the American Declaration; Article 7 a) of the Protocol of San Salvador; Article 9 of the ILO Convention 143; Article 22.9 of the CTM; Programme of Action of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, para. 30 and 81.
 See ILO Convention 87; Article 26 of the CTM; ILO Recommendation 100 on protection of migrant workers, para. 41; ILO Recommendation 151 on migrant workers, para. 2 g).
 See Article 8.1 of the PIDESC; Article 22.1 of the PIDCP; Article 5 e) ii) of the CERD; Article XXII of the American Declaration; Article 16 of the American Convention; and Article 8 of the Protocol of San Salvador.
 See ILO Convention 111 and ILO Recommendation 100 on protection of migrant workers, para. 20, 37-38.
 See ILO Recommendation 100 on protection of migrant workers, para. 45.
 See Article 7 b, c and d of the PIDESC; Article 11 c) of the CEDAW; Article XIV of the American Declaration; Article 7 c), d), e), g), and h) of the Protocol of San Salvador; Articles 9.1 and 12 g) of ILO Convention 143; Article 25.1 a), 2 and 3 of the CTM; ILO Recommendation 151 on migrant workers para. 2 f).
 See Article 11 b) of the CEDAW; Article 7 b) and f) of the Protocol of San Salvador; Article 25.1 b), 2 and 3 of the CTM; ILO Recommendation 151 on migrant workers, para. 2 d).
 Article 32 of the Convention on the Rights of the Child; Article 10.3 of the PIDESC; Article VII of the American Declaration; Articles 7 f) and 16 of the Protocol of San Salvador; ILO Convention 138 on Minimum Age; ILO Convention 182 on the Worst Forms of Child Labor.