The Right to Non-Exploitative Work

Abstract

This chapter rests on the belief that if the right to work is to be a valuable addition to a list of human rights, it must be viewed as a right to non-exploitative work. Non-exploitation is an associated value to dignity and self-realisation, but it must be examined separately in order to assess how it complements the foundations of the right to work and to develop its normative implications. The argument unfolds as follows: the right to work is a human right that at first glance appears universal in international law, but is in reality conditional upon citizenship or immigration status in national legal orders, as sections I and II of the chapter show. Migrants usually need a work permit, in order to exercise their human right to work. Undocumented migrants, in turn, have no legal right to work under immigration law. Section III of the chapter turns to two legal orders, the United Kingdom and the United States, which exemplify how no legal right to work because of immigration rules can lead to exploitation. It discusses two judicial decisions that illustrate the social problem and legal regime on undocumented migrant workers. Section IV of the chapter argues that even though those that have no legal authorization to be in a country have no right to work as a matter of immigration law, they still have a moral right not to be exploited, which constitutes part of the moral right to work and the right to work in international human rights law. This section develops a conception of exploitation, which consists in the abuse of a person’s vulnerability that is created or exacerbated by law, in order to make profit. It then examines whether undocumented migrant workers are subject to exploitation. Having found that the undocumented are exploited, the chapter turns to human rights law in section V. In human rights law, we do not find an explicit right not to be exploited. However, the principle of non-exploitation underlies several provisions. The section explores case law on the prohibition of slavery, servitude, forced and compulsory labour, as well as the prohibition of discrimination, to show that these provisions capture and counteract the exploitation of all workers (both migrants and non-migrants). The exploitation of undocumented migrant workers that stems from what in the UK is termed ‘the doctrine of illegality’ is in breach of these norms of higher order. The final section concludes that an exploitative job cannot be dignified and cannot lead to self-realisation. It is essential then to approach the right to work as a right to non-exploitative work.