The question of irregular migrant workers between a rights based international approach and national regulation
| Autor | Daniela Muradas Reis - Pedro Augusto Gravatá Nicoli |
| Ocupação do Autor | Holds a master degree in Philosophy of Law and a Ph.D. in Law from the Federal University of Minas Gerais (UFMG) - Holds a master degree and is currently a doctorate student in the Ph.D. in Law program from the Federal University of Minas Gerais, with scholarship from the Brazilian government (CAPES) |
| Páginas | 1380-1398 |
1380 • XXVI World Congress of Philosophy of Law and Social Philosophy
The question of irregular migrant workers
between a rights based international
approach and national regulation
Daniela Muradas Reis1
Pedro Augusto Gravatá Nicoli2
Abstract: The analysis of the work rendered by immigrants in an irregular mi-
gratory condition reveals an existing disparity of positions on the issue. On one
hand, national legal orders with merely repressive characteristics are silent on
thespecicity ofthe labourquestion orsimply deprivemigrant workersfrom
protection, as a form of punishment and inhibition of migration. On the other
handinternational humanrights rulesare dedicatedto themaer declaring
the absolute necessity of protection in relation to the work performed. In this
scenario, the essay proposes a critical comparison between the migration laws
in Brazil, consolidated by the Statute of the Foreigner, and the approach of the
issue by the International Labour Organization, to conclude in the direction of
the necessary protection of the dignity of the worker, which cannot be adjourned.
Keywords: Labour Immigration; Brazilian Statute of the Foreigner; ILO’s
Rights Based Approach.
I. Introduction
1
Daniela Muradas Reis holds a master degree in Philosophy of Law and a Ph.D. in Law
from the Federal University of Minas Gerais (UFMG). She is a Labour Law Professor
in the graduate and post-graduate Law School (master and doctorate) of the Federal
University of Minas Gerais.
2
Pedro Augusto Gravatá Nicoli holds a master degree and is currently a doctorate
student in the Ph.D. in Law program from the Federal University of Minas Gerais, with
scholarship from the Brazilian government (CAPES). Currently, he is in a research
stage at the Collège de France, Paris, as part of “doctoral sandwich” program (2013-
2014), under the supervision of Professor Alain Supiot.
Special Workshop: Democracy, Social Justice and Labor • 1381
It is not hard to perceive the relevance of the issue of internation-
al migration in the contemporary world. That occurs because this is an
areaofrecurrentandseriousarontstohumandignityespeciallywhen
it comes to work and the challenges related to the labour protection of
the so-called undocumented immigrants. Antônio Augusto Cançado
Trindadeseestheprobleminitsamplieddimensioninthecontextof
the advertised “globalization”, presenting sharp criticism:
Intimesofthesocalledglobalizationthemisleadingandfalse
neologism which is en vogue in our days), the frontiers have been
opened to the capitals, goods and services, but have sadly closed
themselves to human beings. The neologism which suggests the
existence of a process which would comprise everyone and in
which everyone would participate, in reality hides the fragmenta-
tion of the contemporary world, and the social exclusion and mar-
ginalization of increasingly greater segments of the population.
The material progress of some has been accompanied by the con-
temporary (and clandestine) forms of labour exploitation of many
(the exploitation of undocumented migrants, forced prostitution,
tracofchildrenforcedandslavelabouramidsttheprovenin-
crease of poverty and social exclusion and marginalization”3.
There are also situations of problematic interaction between ir-
regularmigrantsandhostsocietiesundertheinuenceofcomplicating
factors such as racism and xenophobia. Teresa Sales highlights:
“Illegal or clandestine migration has been the focus of international
bodies mostly from the 70’s, when clandestine migration appeared
stronger, generating movements of intolerance and discrimination
against immigrants and their families”4.
3
CANÇADO TRINDADE, Antônio Augusto. Concurring Vote. In INTERAMERI
CAN COURT OF HUMAN RIGHTS. Juridical Condition and Rights of Undocument-
ed Migrants. Advisory Opinion OC-18/03. San Jose, September 17, 2003. Avaliable at
em http://www.corteidh.or.cr/docs/opiniones/seriea_18_esp.pdf. Access on February 2,
2014.
4
SALES, Teresa. Brasil migrante, Brasil clandestino. Revista São Paulo em Perspectiva,
São Paulo, 8(1), p. 107-115, jan./mar. 1994, p. 112. In the original: “As migrações ilegais
ou clandestinas têm sido foco de atenção dos organismos de foro internacional sobre-
tudo a partir dos anos 70, quando as migrações clandestinas se manifestam com mais
vigor, gerando movimentos de intolerância e discriminação contra os imigrantes e suas
famílias”. Translation of the authors.
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