The Gaping Human Rights Loophole for Undocumented Immigrants

Monday, January 03, 2011 - 11:27 AM

Rodolfo de la Garza

Ironically, even though pro-immigrant advocates have won the moral high ground in the current debate about the rights of undocumented immigrants, they have lost the war over how they will be treated. This loss will not be permanently reversed until the discrimination they experience can be challenged as civil rights violations.

Currently immigrant rights are being challenged as violations of the human rights of the undocumented, as defined by United Nation's Universal Declaration of Human Rights. This doctrine transcends the authority of any state and cannot be abrogated by states.

As defined by the UN, human rights include the right to life, liberty, legal equality, religion, free speech, migration, culture and economic well being. Their rarified status notwithstanding, states are not obligated to enact legislation guaranteeing these rights. These rights do, however, set a standard for evaluating a state's commitment to humanitarians and democratic principles.

All states, however, develop their own definitions of civil rights. To do so, they draw on their unique histories and traditions. The core sources for the American definition include the Constitution, the Bill of Rights, the Civil Rights Act of 1964, and the 1965 Voting Rights Acts and its subsequent amendments.  This definition includes the right not to be discriminated against in employment, education, public accommodations, housing and voting because of race, color, religion, sex, age, handicap, or national origin. It also includes procedural fairness in the right to seek legal redress and to fully participate in civil society and politics.

These overlapping but distinct types of rights create an anomaly. When there are human rights violations for undocumented residents, there is no state that authorizes any international agency to intervene within its territory to prevent such abuses. On the other hand, national governments have the authority and capacity to protect the immigrants' quality of life by enforcing their civil rights. However, since they have no right to reside within any state but their own, immigrant-receiving states do not acknowledge that unauthorized immigrants have the full range of civil rights that legal residents and citizens are guaranteed.

To advance and defend the interests of unauthorized immigrants it is necessary to give them the standing to protect themselves by invoking their civil rights. Short of enacting a general amnesty that legalizes all undocumented immigrants, which is unimaginable given the nation's current political environment, this is a way to prevent the continued violation of the human rights of unauthorized immigrants.

The best alternative is developing a long-term alternative to continued undocumented immigration. As I have argued before, this will require major political compromises including the collaboration of immigrant-sending states. Until then, the nation will be shamed by its legal, but undeniable, violation of internationally accepted human rights standards.

Rodolfo de la Garza, a Columbia University professor of Political Science, has studied immigration, political attitudes and voting for over 30 years. He directed the first national political survey of Latinos and has authored, co-authored and edited 18 books and more than 100 scholarly articles and reports on foreign policy, immigration and political attitudes and behavior.


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Comments [13]

Elizama from Oakland California

It is so sad how people can be adults and still be so ignorant. I am a citizen of the United States of America and I support immigrants. In order to understand this topic you need to sit down and understand the history of this country because apparently you do not know what made this country.

Feb. 12 2013 04:00 PM
Julian Hernandez from Elgin IL

No Comment

Dec. 14 2012 10:20 AM
Umberto from London

Politicians are to blame, because particularly at the local level the use immigration instrumentally so as to get votes. In short, many think that by committing an administrative wrong, viz. entering a country without valid documentation, you are committing a crime. However, criminal law is based on culpa or dolus which are clearly lacking in the case of illegal migrants. Therefore, criminalisation of migrants, despite being justified with security and economic reasons, is racist and discriminatory. They are merely committing an administrative wrong for which they can be, in the worst case scenario, fined. What is more, America is obliged to respect treaties like the ICCPR which entail remedies as well. Entering a country illegally is not a crime and cannot be a crime. They are not illegal migrants but irregulars as they simply lack the visa to enter the country. Crimes cannot be attached to one's personal characteristic, namely that of being part of a specific group.

Aug. 13 2011 05:39 AM

I think it terribly sad how many of the comments are so against helping others create better lives for themselves and their families. As an American, I am thankful to live in a country in which there is freedom and opportunity. I am also aware of the fact that our forefathers were once immigrants as well and leaving their home country to try to better themselves and pursue freedom. I am thankful that the undocumented citizens don't treat us the way our ancestors treated the Native Americans.

Jan. 18 2011 11:41 PM
Concerned citizen from Az

People who enter the USA illegally put themselves in a position to be taken advantage of. No one made them cross the border illegally . No one made them take jobs working for less than the going rate for that job. I don't feel sorry for them and don't think they should have any pity for living of life of crime and dishonesty. It is not a human civil right to break the law. You should be ashamed of yourself for pandering to and coddling a bunch of liars, cheats and thieves because they share the same ethnicity as your own. I would love to hear the professors views on mexicos immigration laws but I don't think he will because of his obvious delusion that only the USA is guilty because his people are the majority of illegal immigrants brazenly breaking our laws.

Jan. 15 2011 03:37 AM
magyart from USA

We are governed by the Constitution, not the U.N.

Visit the NumbersUSA and the ALIPAC websites and help fight illegal immigration.

In 2012, vote against every politician that supports illegal aliens.

Jan. 03 2011 10:40 PM
Liberty Patriot

Anyone who breaks the law HAS NO RIGHTS. People from other countries HAVE NO US RIGHTS. These are just basic facts libdems don't get. You libs just want to take away our liberties and hand them over to the illegals. Republicans are on charge now so sit down and shut up.

Jan. 03 2011 09:09 PM

Illegals are not a race or a nationality they are all criminals. Wanting LAWS ON THE BOOKS enforced and criminals prosecuted is NOT discrimination. It is justice.

Jan. 03 2011 07:01 PM
samsung81 from Sacramento, CA

The difficult part of being the "Greatest" Nation on Earth is being "GREAT" part.
History judges the moral leadership of a civilization as to how they treat the weakest amongst their midst.
Whichever side of the debate one falls on, nobody's human rights should be violated.
Whether it is earned legalization or deportation the process should be "humane" in keeping with our values and culture.
On a personal note this is a complex issue and we will not see the solution from either the left or the right. When the issue will be dealt from the center maybe it will get resolved.

Jan. 03 2011 06:37 PM
America from USA

I agree with Carey, who is the UN to tell us what to do in our country? Esp when other countries beat and torture their citizens. Where is the UN on that? Seems anytime immigration law enforcement is on the table, all the bleeding hearts and illegal lovers find all kinds of reasons why they should not be enforced. Deport those who will not obey the US laws!

Jan. 03 2011 05:13 PM
Honesty Would Help You from SeaTac

Sorry, I was going to read this, but you're shameless use of the mythical word "undocumented" made me realize this wasn't ever going to be an honest discussion. Words have meanings, and changing those meanings doesn't help your argument, it just makes you dishonest. There is no such thing as "undocumented", you either come here legally and get the title "Immigrant", or you're here illegally and are an "ILLEGAL ALIEN". Period. There's no gray area on those labels no matter how hard the criminal interlopers try to steal credibility from LEGAL IMMIGRANTS.

The ability to sneak into the country and abscond the building blocks for an American life doesn't give you the legal or moral right to use them as an American.

Jan. 03 2011 02:25 PM
Solomon Kleinsmith from Omaha, NE

This guy is a professor?!?

You can certainly agree with the content of the declaration, but anyone who is actually familiar with it knows its not a binding treaty, or anything of that nature.

The UN Universal Declaration of Human Rights doesn't have any power over member countries. Its best described as a statement of principles, and has no real legal power. While some have tried to use it against countries, to very limited success, if it were binding, most of the countries in the U.N. would have to be kicked out.

Disappointing. You'd think a professor would, you know... do their homework.

Jan. 03 2011 02:01 PM
Cary Conover

I don't care a hoot in Hades about UN anything.

It does not supercede our constitution either.

Take your progressive ideas and go to Europe outer somewhere they fit.

This is the United states of America.
You need to reread the constitution.

no foreign government ever supercede our government period. Take your one world order with you too.
Illegal means illegal any way you define it. They should be treated add such. This is not a human rights issue it is am issue of border control and an immigration system that is broken on purpose to create second class citizens that have no rights shop they are easily controlled. Fix the system flush the corruption the issue goes aw away. Then forced all to get in line. No sponsors no jobs no home no access. No visa no travel they do not get access simple right. Not until all illegals are counted and processed under those standards.

fix the system.

Jan. 03 2011 01:43 PM

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