PROGRESS REPORT OF THE SPECIAL RAPPORTEURSHIP ON MIGRANT WORKERS AND
THEIR FAMILIES IN THE HEMISPHERE
The Inter-American Commission on Human Rights (IACHR) of
the Organization of American States (OAS) has begun to give special
attention to the situation of migrant workers and their families in
the Americas. To this end, it established the Special Rapporteurship
on Migrant Workers and Members of their Families. This Rapporteurship
is led by Commission member Juan Méndez and is supported by the
Executive Secretariat of the IACHR.
The IACHR explicitly limited the scope of action of the Special
Rapporteurship to migrant workers and their families who have moved
beyond the borders of their state of origin. The IACHR explained that
it would not involve itself in other categories of migrant persons
such as “internally displaced persons,” “stateless persons,”
“refugees,” or “asylum seekers.” Nevertheless, the IACHR
recognizes that there are common principles that apply to all these
categories. One should recognize that the precarious situation that
refugees, internally displaced persons, stateless persons and asylum
seekers find themselves in might at times lead them to becoming
migrant workers. And the reverse is also true.
The IACHR decided to give special attention to the phenomenon
of migrant workers and their families taking into account the serious
human rights problems they have to face. Over the years, the IACHR has
had direct knowledge of such problems during on-site visits, and
through complaints of human rights violations and special hearings to
address the topic. The IACHR considers migrant workers and their
families to be an especially vulnerable sector of society, often
subjected to various kinds of abuse and systematic violation of their
basic rights. Moreover, the Commission has taken into account the
importance that OAS member states have attached to this matter in
their agenda for the hemisphere.
The IACHR’s initiative to establish a Special Rapporteurship
for Migrant Workers and Members of Their Families has been well
received by the Heads of State and Government of the Americas. In the
Plan of Action of the Second Summit of the Americas, they pointed out
will) support the activities of the Inter-American Commission on Human
Rights with regard to the protection of the rights of migrant workers
and their families, particularly through the Special Rapporteur for
The Special Rapporteurship purpose is to raise awareness of the
need to fully respect the human rights of migrant workers and their
families; to formulate specific recommendations to member states
regarding the protection and promotion of the human rights of migrant
workers in order to foster progress; to prepare special reports and
studies, and to act promptly on any petitions and communications
citing violation of the rights of migrant workers and members of their
families in any OAS member state.
The Special Rapporteurship would like to make known that many
of the activities that it has planned in the framework of its mandate
have been curtailed by insufficient financial support on the part of
member states and other institutions and organizations. The activities
carried out so far owe their existence exclusively to a $50,000
contribution made by the Mexican government in December 1999.
The IACHR has considered suitable to prepare annual progress
reports on various aspects of the human rights situation facing
migrant workers. Progress
reports have been chosen over a single comprehensive report on the
situation of migrant workers in the hemisphere because of the scope
and complexity of the phenomenon. Moreover, given the scant resources
available to the Office, it would be difficult, if not frankly
impossible, to carry out a comprehensive study.
The report presented here is organized as follows. The first
section covers the main activities carried out by the Special
Rapporteurship on Migrant Workers and Their Families in 2000. The
second section reviews case law in the area of migrant workers and
their families and related areas within the inter-American system for
the protection of human rights (the Commission and the Inter-American
Court of Human Rights) during 2000. The third section offers a brief
analysis of migration and human rights. The fourth section analyzes
how xenophobia, racism and discrimination affect migrant workers and
their families. The fifth and sixth sections go on to examine due
process of law and detention of migrant workers respectively. The
seventh section takes a look at countries’ responses to the IACHR
questionnaire on the situation of migrant workers and their families
in the hemisphere. The last section presents our conclusions and
recommendations. Six responses to the questionnaire just recently
received are appended to this report as an annex.
During its 106th Regular Session held from 22
February to 10 March 2000, the IACHR named Dr. Juan Méndez Special
Rapporteur for Migrant Workers and Members of Their Families.
At IACHR headquarters on 22 March 2000, the IACHR and the
International Organization for Migration (IOM) entered into a
cooperation agreement with the purpose of developing joint activities
to promote the observance and effective protection of the human rights
of migrants in the Americas. After the signing of the
inter-institutional cooperation agreement both organizations issued a
joint press release that, among other things, announced that:
institutions are aware that migration issues, especially those related
to migrant workers and members of their families, today represent a
key area in the progressive universalization of international
relations and that it is necessary to address those issues from a
multilateral perspective, while also bearing in mind the desire
expressed by the Heads of State and Government of the Americas in the
Second Summit of the Americas that a special effort be made to
guarantee full observance and respect for the human rights of
two institutions trust that this Cooperation Agreement will lead to
joint activities in the near future.
In April of 2000, the IACHR was notified that it had been
granted observer status by the Regional Conference on Migration (RCM).
In May of 2000, the IACHR sent a reminder out to governments
that had not yet responded to the questionnaire on migrant workers and
their families, which had been distributed approximately two years
earlier. The questionnaire was designed to gather information from the
whole of the Americas on the current characteristics, practices and
legislation related to migrant workers and their families. During
2000, six additional responses were received, as seen in this report.
In June of 2000, the IACHR jointly sponsored a seminar with the
IOM and the Economic Commission for Latin America and the Caribbean (ECLAC)
that brought together specialists to discuss the “Best Practices in
the Treatment of Migrants.” The seminar was held at ECLAC
headquarters in Santiago (Chile).
In September of 2000, the OAS, through the IACHR, co-sponsored
the “Symposium of International Migration in the Americas,” which
was held in San José (Costa Rica) and attended by representatives of
the various states of the Americas as well as by representatives of
civil society and experts on migration.
In October 2000, the Special Rapporteur on Migrant Workers and
Their Families was invited by Guatemala to make an in
loco visit to observe first hand the phenomenon of migrant workers
in that country. At the time of writing, Guatemala and the Special
Rapporteur are discussing the date of such a visit.
In November 2000, the Special Rapporteurship participated as an
expert in a seminar organized by the Regional Network of Civil
Organizations for Migrations belonging to the RCM. The Office gave a
presentation on “Migrant Workers and Human Rights under the
Inter-American System for the Protection of Human Rights.”
On behalf of the IACHR, the Special Rapporteurship attended the
VI Regional Conference on Migration in San José (Costa Rica) from 19
to 23 March 2001. This was the first time the organization
participated in the conference as an observer. It also participated in
the meeting of the Regional Network of Civil Society, which was being
held parallel to the RCM.
LAW IN THE INTER-AMERICAN SYSTEM FOR THE PROTECTION AND PROMOTION
OF HUMAN RIGHTS IN RELATION TO MIGRANT WORKERS AND MEMBERS OF THEIR
The Special Rapporteurship has thought it advisable to present
an annual report to the General Assembly on any jurisprudence
established by the bodies of the inter-American system for the
protection and promotion of human rights that touches on the rights of
migrant workers and their families. In this way, we hope to contribute
to the ongoing study of the issue and to serve as a guide toward to
the full protection of the basic rights of those individuals.
In its 1999 report, the Special Rapporteurship outlined certain
principles applicable to migrant workers and members of their families
that had been developed on the basis of the case law of the Commission
and the Court. Mention was made of (a) the prohibition of the
collective expulsion of aliens; (b) the right to a fair trial and
judicial protection (with emphasis on consular assistance); (c) the
right to nationality, and (d) protection of the family.
During the year 2000, the inter-American system of human rights
had further opportunity to delve into the issue of migrant workers and
their families when the Commission presented the Court with a request
for provisional measures in response to the collective expulsion of
Haitians and Dominicans of Haitian origin from the Dominican Republic.
This request resulted in the Court ordering that
provisional measures be taken in favor of certain persons in order to
protect their basic rights.
What is truly significant here, as will become clearer as we
proceed, is that this is the first time that provisional measures have
been instituted to: (a) halt collective expulsions; (b) require a
state to abstain from expelling certain persons from its territory;
(c) require a state to allow the immediate return of certain persons
to its territory, and (d) require that a state allow the reunification
of the families of certain persons.
The Commission also declared admissible two cases that deal, to
a certain extent, with the issue of migrant workers. Case Nº 11.495
involves the deportation of Juan Ramón Chamorro, a Nicaraguan
national, from Costa Rica. He alleges that rights protected in the
American Convention have been violated.
The second case is Nº 12.198, in which it is claimed that
Dilcia Yean and Violeta Bosica, both underage girls, have been denied
Dominican nationality in spite of the fact that both were born in the
Dominican Republic and that the Dominican constitution establishes jus
solis as the basis of nationality.
Finally, on April 4, 2001, the Commission approved and
publicized report number 51/01 (case 9903 Rafael Ferrer Mazorra v. the United States of America), commonly
known as “the Cubans from Mariel”.
On 12 November 1999, the Commission received information to the
effect that the Dominican government was collectively expelling
Haitians and persons of Haitian descent from its territory. The report
indicated that groups of people were being rounded-up and expelled
without legal proceedings that would allow for a proper check of the
nationality of the individuals, their status in the country and their
family ties. They were simply taken from their homes without warning
and without even being allowed to gather personal belongings.
On 22 November 1999, the Commission issued a precautionary
measure, calling on the Dominican Republic to cease such collective
expulsions, or if it were to continue them, to do so in compliance
with all the due process guarantees.
On 7 December 1999, the Dominican Government rejected said
According to the petitioners, the pace of the deportations
slowed after November 1999. However,
they picked up speed once again during the first quarter of 2000. In
response, on 30 May 2000 the IACHR sent to the Court a request for a
general provisional measure to be extended to all Haitians and persons
of Haitian descent under the jurisdiction of the Dominican Republic
and in danger of being expelled or deported collectively. The
situation was posing a threat to the right to life and physical
integrity of the deportees and members of their families, especially
minors. The Commission also asked the Court to adopt provisional
measures requiring the Dominican authorities to implement procedures
that would allow cases in which deportation was not called for to be
distinguished from those in which it was. In regard to cases in which
expulsion or deportation of persons present in the Dominican Republic
was appropriate, all proceedings should fully comply with the
requirements of due process, including prior notification with
adequate time for preparation, access to family members, adequate
hearings and decisions arrived at in a legal fashion by the competent
authorities. The Commission requested that the measures include the
requirement that all cases of deportation be individual and that
collective deportation not be allowed.
On 13 June 2000, the Commission submitted to the Court an
addendum to its request for provisional measures. In it, the
Commission listed victims of the expulsions and asked the Court to
issue measures to provide them with protection.
On 8 August 2000, the Commission and the Government of the
Dominican Republic attended a public hearing on the request for
provisional measures at the headquarters of the Court. Representatives
of the petitioning bodies (CEJIL and the Centers for Human Rights of
Columbia University and the University of California at Berkeley)
accompanied the IACHR delegation. Father Pierre Ruquy, a priest of
Belgian nationality, and Mrs. Sonia Pierre, a Dominican citizen, both
of whom work with the Haitian population living in the Dominican
Republic, appeared as witnesses.
On 18 August 2000, the Court
granted provisional measures in favor of certain persons (those listed
in the addendum and the witnesses), but rejected the request for
measures in favor of categories or groups of unspecified number and
identity. Under the “considering” paragraphs of its decision, the
Court pointed out that:
the Dominican Republic is sovereign to make decisions regarding its
migration policy and those decisions should be compatible with
provisions for the protection of human rights found in the American
the record presented by the Commission in its request shows prima facie indication of a situation of extreme gravity and
urgency in regard to the rights of life, personal integrity, special
protection of children within a family and free circulation and
residence of the persons identified in the addendum…
Article 1.1 of the Convention sets out the obligation of the States
Parties to respect the rights and freedoms recognized
therein and to ensure to all persons under their jurisdiction the free
and full exercise of those rights and freedoms.
it is the responsibility of the Dominican Republic to take measures to
protect all persons under its jurisdiction, and that this obligation
is all the more evident in relation to persons involved in proceedings
before bodies charged with overseeing the American Convention.
In its decision, the Court ruled to:
Order the State of the Dominican Republic to adopt, without
delay, all measures necessary to protect the lives and personal
integrity of Benito Tide Méndez, Antonio Sension, Andrea Alezy, Janty
Fils-Aime and William Medina Ferreras.
Order the State of the Dominican Republic to abstain from
deporting or expelling Benito Tide Méndez and Antonio Sension from
Order the State of the Dominican Republic to allow Janty
Fils-Aime and William Medina Ferreras to immediately return to its
Order the State of the Dominican Republic to allow Antonio
Sension and Andrea Alezy to be reunited with their underage children
in the Dominican Republic as soon as possible.
Order the State of the Dominican Republic to cooperate with
Antonio Sension to obtain information regarding the whereabouts of the
members of his family in Haiti or the Dominican Republic.
30. It can be seen that the Court refused to
widen the scope of its jurisprudence, which has consistently granted
provisional measures exclusively in favor of clearly named and
identified individuals. There is, however, a novelty in another
important aspect of this case. Previously the Court had only granted
measures to protect the rights to life and physical integrity of the
individuals at risk. With the current measures, for the first time the
Court has extended that protection to rights such as the right to
reside in one’s country of origin, and to measures protecting minors
and the family.
This section of the report presents an analysis of the issues
raised by the phenomenon of migration in the area of human rights.
Here we aim to describe the framework in which the human rights of
migrant workers and members of their families are violated. Various
aspects will be examined, including trends and new characteristics of
migration in the last decade, with emphasis on the Americas, the
interests of the various parties, such as states and migrant workers,
and international norms for the protection of migrants.
Over the last decade migration has moved to the forefront of
the international political agenda. In migrant receiving countries,
such as United States, Germany, France, Italy, Canada and Australia,
among others, governments, political parties, civil society, church
groups and the media have extensively debated the issue. Similar
discussions are underway in many developing countries such as
Malaysia, Argentina and South Africa, which have recently begun to
receive a growing number of immigrants. But debate has not been
limited to migrant receiving countries. It is also alive in the
countries of origin of many migrants, such as Mexico, El Salvador,
Turkey, Indonesia, Romania and Albania, to name but a few.
In migrant receiving countries, discussion has centered on ways
to restrict entry, on the social, cultural and economic consequences
of immigration and on which social services immigrants may legally be
denied. In countries of origin, however, the debate focuses more on
the basic rights of the millions of migrants who are in danger of
being abused and exploited abroad and how they can be protected.
Further attention is given to which rights and social benefits should
be extended to migrant workers and members of their families, and on
ways to assure them a stable life in the country of residence so that
they can send remittances to family members still living in their
country of origin.
The heightened concern of States is reflected in the debates
undertaken in intergovernmental forums, especially in the United
Nations. To foster exchange of information and experience States have
established special conferences and forums, especially on a regional
level. In the Americas, two such forums have been set up. The Regional
Conference on Migration (RCM), also known as the Puebla
Process, was founded in 1996 and now brings together 11 countries of
North and Central America (United States, Canada, Mexico, Guatemala,
Honduras, Costa Rica, Belize, El Salvador, Panama, Nicaragua and the
Dominican Republic). The South American Conference on Migration was
launched in 1999 and brings together Argentina, Bolivia, Brazil,
Colombia, Chile, Ecuador, Paraguay, Peru, Uruguay and Venezuela.
The growing relevance of migration is due in large part to the
fact that while people in developed countries tend to think, rightly
or wrongly, that the limit for absorbing immigrants has been reached,
in the world the number of people migrant is increasing. Thus we see
that while migratory pressures on receiving countries, especially
developed ones, have increased significantly, the willingness of these
nations to continue to open their doors to immigrants has decreased
(with certain exceptions such as Ireland and Switzerland).
According to the International Organization for Migration
(IOM), there are 150 million migrants in the world today (a figure
just slightly lower than the population of Brazil).
The great majority of this population is in search of a
brighter future, fleeing poverty, violence and scarce opportunity in
their countries of origin. In a recent report, the International Labor
Organization (ILO) reports that between 1965 and 1990, the number of
migrants increased by nearly 50%, from 75 to 120 million.
According to the ILO, some 70 to 80 million of them
migrated voluntarily in search of work. The rest are either refugees
or internally displaced persons.
Of the 70-80 million voluntary migrant workers, a high but
indeterminate percentage is made up of undocumented migrants. (It is very difficult to estimate the number of undocumented
migrants, as they are reluctant to be registered for fear that they
will be deported or detained.) The same study goes on to point out
that between 1970 and 1990, the number of countries classified as
major receivers of migrant workers increased from 39 to 67, while the
number of countries of origin went from 29 to 55. The study also shows
that the number of countries that both receive migrants and are a
point of origin of migrants increased from 4 to 15.
Experts agree that migration has increased due to a combination
of social, political, economic and demographic factors. Growth in the
world’s population, which reached 6 billion in 2000, has certainly
led to a major upturn in the number of migrants. Between 1970 and
1990, migration grew on average by 1.9% per year. That figure,
however, was only 0.1% above the annual growth rate of world
population (1.8%). In other words, greater migration does not indicate
a significant increase in the propensity to migrate. Rather it would
seem to be a quite precise reflection of population growth.
However, the increased migration can not be explained solely on
the basis of demographic factors. Political developments, especially the end of the cold war,
have also contributed to greater migratory flows. The breakup of the
Soviet Union meant that restrictions on movement imposed by the
communist regime were lifted, with the result that thousands chose to
emigrate, all the more so given the visible deterioration in the
standard of living in former-communist countries. Moreover, a
resurgence of national, religious and ethnic rivalries, spurred on in
part by the end of the cold war, fanned the flames of violence in the
Balkans (Yugoslavia, Bosnia, Croatia), the Caucasus (Georgia, Armenia,
Azerbaijan, Chechnya) and certain former provinces of the Soviet Union
(Tajikistan). This led to a major exodus, especially toward Europe.
Similarly, social, religious and ethnic problems in Africa, Asia and
Latin America and the Caribbean have pushed more and more people to
At the same time, the end of the cold war lessened the
enthusiasm of developed countries to accept dissidents or to recognize
foreign political activists as dissidents deserving of international
protection. Developed western countries ceased to see any strategic
advantage in offering protection to people fleeing communist regimes.
One of the factors that has most contributed to an increase in
migratory flows is the growing gap between the standard of living and
the social and labor services (access to education, health services,
pensions) available in developed and developing countries. There have
always been disparities between rich and poor countries, but over the
last 20 years the difference has grown. Wages are good examples. While
wages have been on the rise in the developed world, in the majority of
developing countries any increase has been slight or non-existent, or
in some cases wages have even gone down. In some countries wages have
declined. In 1980, for example, the ratio of the hourly wage in the
manufacturing sector of China in comparison to that of the United
States was 1:36 (US$0.25 to US$9.87). By 1995 it had grown to 1:72
(US$0.25 to US$17.20). In 1996, a Mexican worker could make up to nine
times more working in the United States than in his own country. Such
huge differences can not help but lead to greater migratory flows.
Technological change has also played a part. The omnipresence
of air travel and improvements in both land and sea transportation,
have facilitated the movement of peoples by reducing cost and
increasing efficiency. The growing penetration of international media
has meant that more and more people in the developing world have
become aware of the living conditions in developed countries. In
addition to greater economic opportunity, the pull of the new cultural
symbols conveyed by television, movies and popular music has further
motivated people to leave their own countries. Advances in technology
and the resulting lower cost of communications mean that migrants can
easily stay in touch with their families back home. This means that
feelings of personal and cultural isolation are mitigated and more
people are willing to try their luck in another country.
The recent appearance of transnational organizations
trafficking in human beings has also contributed to greater migratory
flows. Their sophisticated know-how and comprehensive knowledge of all
aspects of immigration control have allowed them to avoid detection
and illegally transport hundreds of thousands of people across
international borders. These syndicates also stimulate migration by
actively recruiting women and children in developing countries for
illegal activities, including prostitution.
Social factors also come into play. One element that has
substantially contributed to greater migration has been the growing
number of women on the move. More women now follow their husbands and
families. However, women also have begun gradually to migrate on their
own. Historically women were but a small percentage of the total
number of migrants, but they now represent 47.5%. The fact that
millions of women have swollen the tide of migration has not only
resulted in an increase in the total number of people migrating, but
has also radically changed the face of this social phenomenon.
The growth of migrant worker communities has also contributed
to increasing the flow of migrants. These communities act like magnets
and the ad hoc information networks that they help engender disseminate
news on immigration regulations and the labor and housing markets. In
this way they both galvanize and facilitate migration.
Lastly, mention must be made of the growing influence of
natural disasters such as earthquakes, droughts, floods and hurricanes
on migratory flows. Although such catastrophes have always generated
migration, today’s technological advances make it easier than ever
for people to just get up and leave their countries after a major
Hurricane Mitch is a prime example. When Mitch hit in
1998, thousands of Central Americans left their homes to move, above
all, to Mexico, the United States and Canada.
Migration in the Americas has seen a notable increase in recent
decades. As in the rest of the world, this increase has been due to a
convergence of the economic and social factors that have historically
spurred migration. But changing cultural and social patterns have also
played a role. Traditional migratory flows, especially the exodus of
Mexicans to the United States, have continued their pace or even
picked up speed. In addition to this traditional flows in recent
years, new migratory movements have also emerged, especially in South
Migration toward the United States continues to be the main
focus of regional migration (in fact the main one in the world).
According to the IOM, the United States takes in about one million
legal immigrants a year and allows another 300,000, including
professionals with temporary contracts, seasonal workers and students,
to enter temporarily. Migrants arrive in the United States from all
continents of the world. According to the Immigration and
Naturalization Service (INS), the main groups immigrating to the
country over the last decade have been Chinese, Indians, Poles,
Vietnamese, Filipinos, Ukrainians, Koreans, Irish and Russians. As for
legal immigrants from the America, Mexicans, Dominicans, Salvadorans
and Cubans (most of whom emigrated after the Revolution of 1959)
predominate, with smaller numbers of Jamaicans, Canadians,
Guatemalans, Haitians, Bahamians and South Americans also present.
Of the persons in the United States who regularized their
migratory status in1998, the largest group was of Mexicans (20%),
followed by Chinese (5.6%), Indians (5.5%) and Dominicans (3.1%).
An indeterminate but significant number of people enter the
United States without proper documentation. According to the
International Labor Organization, about 5 million undocumented
migrants were living in the United States in 1996.
According to an INS report quoted by the IOM, the number
of such undocumented in the country increases by 275,000 every year.
More than half of undocumented migrants in the United
Stated are from Mexico (it deserves to be said that Mexican workers
have traditionally migrated to the United States in search of better
jobs), with a lower but still significant percentage from Central
America. The political crisis afflicting Central America in the 1980s
led large numbers of Salvadorans, Guatemalans and Nicaraguans to
emigrate to the United States. Their numbers dropped significantly in
the early 1990s, but the exodus of Central Americans to the United
States picked up again in 1998 due to the devastation caused by
Hurricane Mitch. There are also regular flows of immigrants from
Canada, Haiti, the Dominican Republic, Jamaica, and Bahamas, as well
as a large number from South America, mostly from the Andean
Another traditional destination for migration in the Americas,
although to a lesser degree than the United States, is Canada.
However, the difference is that Chinese, Indians, Taiwanese and
Filipinos are the predominant groups, and not Mexicans, Central
Americans or Caribbeans. The main source countries from the Americas
are El Salvador and Haiti. Canada also allows in almost 300,000
seasonal workers every year, the majority of whom are Mexicans.
Mexico is another main destination in the region, especially
for Guatemalans, Hondurans, Nicaraguans, Panamanians, Colombians and
Venezuelans. Many go to Mexico in search of higher wages, or to escape
violence, yet others migrate with the hope of eventually making it to
the United States.
Moreover, the Mexican government reports that some 330,000
undocumented citizens of the United States reside in the country.
The migration of Haitians to the Dominican Republic and
the migration of Central Americans, especially Nicaraguans to Costa
, are two other main foci of migration in the Caribbean and
Within South America, Argentina and Venezuela attract the
greatest number of migrants. Argentina is home to almost 2 million
immigrants, more than half from Latin America. IOM statistics show
that the number of Latin American immigrants in Argentina grew from
571,000 in 1970 to 818,000 in 1991. These immigrants, attracted by
better paying jobs, come above all from Chile (mostly as seasonal
workers in Patagonia), Bolivia, Paraguay, Brazil and Uruguay (mostly
Venezuela hosts about 1 million immigrants, most of them
present without authorization. The great majority comes from Colombia,
but many also come from Peru and Ecuador.
Although to a lesser extent than either Argentina or Venezuela,
Brazil also attracts a large number of migrant workers. Estimates show
that some 800,000 foreigners currently live in the country, mostly
from Paraguay, Bolivia and Peru, but to a lesser extent also from
Argentina and Uruguay.
Paraguay is another traditional destination with 350,000–400,000
migrant workers, mostly undocumented Brazilians (brasiguaios).
Recently, new trends have been appearing in the region. The
difficult situation in Colombia, where a sharp increase in violence
has coincided with a serious economic crisis, has generated an exodus
from the country, mostly to the United States, Mexico, Panama and
Europe. The severe economic and political crisis afflicting Ecuador
has led many of its people to leave for Argentina and Spain. Political
instability and economic problems in Peru have generated the
emigration of between 350,000 and 500,000 people to Japan, Europe, the
United States, Argentina, and most recently Chile. In the same vein,
economic difficulties in Argentina and Uruguay have pushed many
people, some of them highly qualified professionals, to emigrate to
the United States, Europe and to a lesser degree, Mexico. Chile,
however, is an exception. Traditionally a source of migration, Chile
has begun to receive a growing number of foreigners, including Cubans,
Ecuadorians and Peruvians, due to higher wage levels produced by an
extended period of economic growth.
A novel and very interesting point to note is that many
countries of the Americas have become places of transit for migrants.
Every year thousands of Central Americans, Caribbeans and South
Americans headed for the United States or Canada pass through Mexico,
Guatemala, Honduras, Costa Rica, Nicaragua and El Salvador. Something
similar happens in South America. Peruvians and Ecuadorians cross
Bolivian and/or Chilean territory into Argentina, or go through
Colombia and Central America on their way to the United States.
Another phenomenon of note is the large number of extra-regional
migrants arriving in various countries of the region. According to
statistics submitted to the Special Rapporteurship by various
governments, Asians, Africans and Eastern Europeans arrive with the
intention of proceeding to the United States, Canada or other
Another trend that merits mention is the conclusion of
bilateral and multilateral agreements between or among countries of
the Americas. Some are longstanding, others more recent, but all have
the common goal of helping states regularize the flow of migrant
workers and members of their families by coordinating policies.
Currently there are more than ten intergovernmental agreements of this
kind in place. Among the major bilateral agreements are those between
Canada and Mexico, the United States and Mexico, the Dominican
Republic and Haiti, Bolivia and Argentina, Costa Rica and Nicaragua,
Colombia and Venezuela, and Peru and Argentina. The major multilateral
instruments include the agreement among the members of Mercosur
(Argentina, Bolivia, Brazil, Chile, Paraguay and Uruguay)
and that among the members of the Andean Pact (Bolivia,
Colombia, Ecuador, Peru and Venezuela).
Any analysis of the violation of the human rights of migrant
workers and members of their families in the Americas must begin with
a sound understanding of the nature of migration as a social
phenomenon. It cannot be stressed enough that violations of the basic
rights of migrant workers do not occur in a vacuum. They come about
within a context and have a connection to national immigration
policies. Migration is a complex process with varied social, cultural,
political and economic repercussions. Many diverse parties are
involved, all with different interests. On the one hand states that
regulate the exit and entry of persons in order to protect national
interests, on the other the individual migrant workers and their
families whose goal is to improve their standard of living. Moreover,
we must distinguish among receiving countries, countries of origin and
countries of transit.
Receiving countries usually attempt to regulate the inflow of
foreigners according to economic, social and even political
conditions. They tend to promote immigration during cycles of growth
when labor becomes scarce. Some countries may promote the immigration
of skilled workers, while others may be more interested in unskilled
workers willing to perform the jobs that no longer interest the local
population. Countries with low or negative demographic growth with a
large retirement-age population tend to promote immigration because
they need to expand their labor force. Moreover, some countries are in
need of active workers to swell the ranks of those contributing to
retirement systems in order to cover the retirement and pension
benefits being paid out. During recessions, just the opposite occurs.
Receiving states restrict the entry of foreigners because they already
have a surplus of labor, often reflected by a high rate of
Political considerations also contribute to immigration policy
in net receiving countries. In general, States tend to restrict
immigration when the public shows signs of being nervous about or
uncomfortable with immigrants. One cause of such a reaction on the
part of the local population may be falling wages brought about by an
excessive number of people looking for work. It could also be due to a
fear that foreigners may overload government-run social services,
which were originally designed for citizens only. States also restrict
immigration when they start to fear that the presence of foreigners is
changing long-standing cultural patterns in an unpredictable or simply
undesirable fashion. In many countries, especially those with
homogenous populations, the presence of foreigners whose appearance,
customs and religion is different can create unease among the local
population. States are very sensitive to these situations and when
public opinion turns in favor of restricting the entry of foreigners,
they tend to respond by implementing anti-immigration measures. When
public opinion is manifestly in favor of accepting foreigners into the
country, especially for humanitarian reasons, governments tend to
loosen the requirements for entry. They may also do so when pressed by
certain influential groups. Sometimes business groups lobby for more
permissive immigration policies, either because they are facing a
shortage of workers or because they want to contract foreigners who
will usually work for lower wages.
In like fashion, the governments of countries that are net
producers of migrants will promote emigration in line with a set of
interests. Emigration is often seen as a safety valve to release the
building pressure of social problems. Poor countries with large
populations and structural unemployment promote emigration of
unskilled workers to relieve the burden being placed on their social
services. Governments may even promote a “brain drain” if the
local labor market is not capable of absorbing highly qualified
personnel. Another incentive for governments is the fact that people
working abroad send home remittances. Remittances may also be a
valuable macroeconomic tool. In many countries they are used to offset
a balance of payments deficit. Governments may also promote emigration
for political reasons, seeing it as a potential way to get rid of
critics or to get training for skilled workers abroad.
States of transit share some of the same concerns of receiving
countries. Although many migrant workers enter with no intention of
staying, still the entry of a large number of foreigners may have a
negative impact on the economy or affect public life in other ways.
One of the most difficult problems for countries of transit is the
pressure brought to bear on them by richer and more powerful receiving
countries to place greater restrictions on the entry of foreigners.
However, if they give in to such pressures, they may well find that
their relations with countries of origin suffer, because these
countries will complain about the poor treatment of their nationals.
Finally, as has been pointed out, the trends in migratory flows
also depend on migrants themselves. People migrate for many different
reasons. They go to a new country in search of a better future or
fleeing violence, war, poverty or scarcity of economic opportunity. It
should be stressed that their motivation transcends the merely
political or economic reasons. Many people migrate in search of higher
social standing. Women and ethnic or religious minorities may see
migration as a way of obtaining equality and fair treatment.
We have stressed that migration is a complex process. The forms
it takes respond to the economic, political, social and cultural
interests of the countries of origin, of transit and of final
destination, as well as the motivations and hopes of the migrants
themselves. This is the context in which human rights violations
occur, whether they involve persons seeking political asylum or
migrant workers and members of their families. Most violations occur
in receiving countries and countries of transit, and thus it is
necessary to try to understand the dilemma that such countries face.
When they try to regulate immigration in accordance with their own
interests and priorities, they may well find themselves confronted by
a very thorny political and ethical problem. When defining immigration
policy, states must always reconcile two diametrically opposed
principles. On the one hand, they have the right to regulate entry
into the country in accordance with national interests. Simply put,
they have the right to exercise sovereignty. On the other hand, they
must respect the dignity and rights of the millions of human beings
who want to leave their own countries to find a better life for
themselves and their families elsewhere.
This opposition has always tilted the equation in favor of
states that, waving in the principle of sovereignty limit entry any
way they please. Nonetheless, it is interesting to note that states
continue to maintain that emigration is a legitimate aspiration,
reason for which they are against any restrictions being placed on
persons exiting their countries of origin.
But when they try to control immigration, states often end
up violating the basic rights of migrants. Those who have entered the
country legally may at times be affected, but such abuse usually hits
undocumented workers and refugees the hardest. The deliberate
intention of states to discourage immigration often lies behind such
violations of the rights of immigrants and migrant workers.
Thus it becomes clear that immigrants and migrant workers find
themselves in a vulnerable position. Often they are not familiar with
the law and do not speak the language. At times they meet with
outright hostility on the part of the local population, including
authorities. Undocumented migrant workers find themselves in an
especially difficult situation and even more exposed to abuse. In
fact, the specific circumstances facing migrant workers shows that
they face a situation of structural vulnerability.
Migrants constantly run up against roadblocks, including
arbitrary arrest and the lack of due process, collective deportation,
discrimination in the granting of citizenship or in acceding to social
services that foreigners have a right to by law, inhumane detention
conditions, harassment on the part of authorities, including police
and immigration officers, and the inability to defend themselves when
exploited by unscrupulous employers. These problems become even more
acute for women and children migrants, who must also deal with sexual
harassment, beatings and below-standard working conditions.
A worrisome development that directly threatens migrants,
although one not necessarily connected to states, is the spread of
organized criminal groups trafficking in human beings. Their power and
resources have made these organizations a true danger. One recent
study points out that trafficking in human beings is now a 3 billion a
year business in the United States.
These criminal syndicates are not only making money
illegally, they are also abusing, defrauding and robbing desperate
migrants who have contracted their services. In their attempts to
avoid law enforcement authorities, they expose migrants, including the
elderly, women and children, to unnecessary risks that sometimes end
up proving fatal. For example, traffickers have been known to abandon
their clients in the middle of the dessert or sea, or to pack them so
tightly into trucks or containers that they die of suffocation.
The spread of these organizations has led to another cause for
concern–the criminalization of border areas. More and more, border
areas, especially those with large flows of people, are becoming
dangerous places due to the presence of criminal gangs, which take
advantage of the precarious situation of migrants to rob, assault,
rape, extort, pillage and murder. Crime, however, is not limited to
gangs. All too often there are also corrupt officials who also rob,
abuse and extort migrant workers. Such an attitude on their part only
makes many border areas even more dangerous.
of Montruois: A New Vision of the OAS”, approved by the General
Assembly in Haiti in 1995, states that increasing interdependence
and economic integration require that the question of migrant
workers and their families be addressed on the basis of solidarity
among member states and with full respect for the dignity and rights
of such persons.
the Summit of the Americas in Santiago (Chile) in April of 1998, the
heads of state and government of the Americas issued the Declaration
of Santiago, which says that “Special efforts will be made to
guarantee the human rights of all migrants, including migrant
workers and their families.” The Summit’s Plan of Action went on
to point out that states should seek full compliance with and
protection of the human rights of all migrant workers, adopt
effective measures to prevent and eradicate all forms of
discrimination against them, prevent abuse and mistreatment by
employers, and provide, with respect to working conditions, the same
legal protection as for national workers.
On 8 October
1999, the Commission formally requested the status of permanent
observer by sending an application to the Minster of Foreign
Relations of El Salvador, which was then the Pro Tempore Secretariat
of the Regional Conference on Migration.
was organized by the Economic Commission for Latin America and the
Caribbean (ECLAC) and the International Organization for Migration
(IOM). The other sponsors were the Inter-American Development Bank
(IDB) and the United Nations Population Fund (UNPF).
of the American Convention states that “In cases of extreme
gravity and urgency, and when necessary to avoid irreparable damage
to persons,” the Court may take any provisional measures it deems
pertinent in regard to a case not yet submitted to it, upon the
request of the Commission. Moreover, Article 25(1) of the Court’s
Rules of Procedure stipulates that “At
any stage of the proceedings involving cases of extreme gravity and
urgency and when necessary to avoid irreparable damage to persons,
the Court may, at the request of a party or on its own motion, order
whatever provisional measures it deems appropriate, pursuant to
Article 63(2) of the Convention."
The request for
provisional measures was made on behalf of a specified group (of
Haitians and Dominicans of Haitian descent), although no names were
attached to the request. This was done because Dominican practice
does not allow individuals to be distinguished from a group, and
also because the individuals affected did not dare attach their
names for fear of reprisals.
Report on Admissibility Nº 89/00, Case Nº 11.495, Juan Ramón
Chamorro Quiroz (Costa Rica), 5 October 2000.
Report on Admissibility Nº 28/01, Case Nº 12.189, Dilcia Yean and
Violeta Bosica (Dominican Republic), 22 February 2001.
51/01 Rafael Ferrer Mazorra
and Others v. the United States published in the Annual Report,
pages 792-860. The Special Rapporteurship in a future Report will
summarize the advances in jurisprudence referred to by the IACHR in
Court of Human Rights, “Provisional Measures requested by the
Inter-American Commission on Human Rights with regard to the
Dominican Republic”, 18 August 2000.
Article 29 of
the Commission’s Rules of Procedures stipulates that “In urgent
cases, when it becomes necessary to avoid irreparable damage to
persons, the Commission may request that provisional measures be
taken to avoid irreparable damage in cases where the denounced facts
Workers Without Frontiers.
The Impact of Globalization on
International Migration. Boulder, CO. Lynne Rienner Publishers,
the Office of the United Nations High Commissioner for Refugees
(UNHCR) and the United States Committee for Refugees (USCR), in the
year 2000 there were between 12-14 million refugees and at least 21
million internally displaced persons. UNHCR. Refugees
and others of Concern to UNHCR. Geneva, 2000, p.6; USCR. World Refugee Survey 2000. Washington, 2001, pp. 4-6.
cit., pp. 5-7.
cit., pp. 5-7.
Loescher, Gil. Beyond
Charity. Oxford University Press, 1993, pp. 18-23 and 103-108.
cit., pp. 1-23; IOM,
Report of the Special Rapporteur on the Human Rights of Migrant
Workers, E/CN.4/2000/82, paragraph 41;
Human Rights Watch, World
Report. Special Issue and Campaigns: Racial discrimination and
Related Intolerance: Migrants and Refugees. Human Rights Watch
IOM, op. cit.
Weiner, Myron. The
Global Migration Crisis: Challenges to States and Human Rights. New
York: Harper Collins College Publishers, 1995, pp. 10-12.
IOM, op. cit.
Admitted by Region and Selected Country of Birth: Fiscal Years
1992-99. INS Website: www.ins.gov/graphics/aboutins/statistics/annual/fy94/744.htm
IOM, op. cit.
IOM., op. cit.;
United States response to the questionnaire sent out by the Office
of the Special Rapporteur.
IOM., op. cit.;
United States response to the questionnaire sent out by the Office
of the Special Rapporteur.
IOM, op. cit.
IOM, op. cit.
response to the questionnaire sent out by the Office of the Special
IOM, op. cit.;
Mexican response to the questionnaire sent out by the Office of the
IOM, op. cit.
IOM, op. cit.
IOM, op. cit.;
Venezuelan response to the questionnaire sent out by Office of the
IOM, op. cit.;
Brazilian response to the questionnaire sent out by Office of the
IOM, op. cit.;
Paraguayan response to the questionnaire sent out by Office of the
the governments of Bolivia, Brazil, Costa Rica, Colombia, Ecuador,
Guatemala, Mexico and the United States to the questionnaire sent
out by the Office of the Special Rapporteur.
Bolivia are associate, not full members of Mercosur.
American Free Trade Agreement (NAFTA) among Canada, Mexico and the
United States only contains language on the entry and exit of
Aristide. “International Migrations in Political Perspective”,
in Kritz, M.M, and Tomasi, S. (editors) Global
Trends in Migration: Theory and Research in International Population
Movements. New York: The Center for Migration Studies, 1981, pp.
3-15; Weiner, op. cit., pp. 171-75.
cit. 6-25; Weiner, Op. cit: 140-4; ; Zolberg, Aristide. “The
Politics of Immigration Policy”, American
Behavioral Scientist 42 (9), 1999, pp., 276-80; Teitelbaum,
Michael. Immigration Refugees and Foreign Policy’, International
Organization 38 (3) 1984, pp.,
cit., p. 29; Weiner, op. cit., pp. 140-44; Zolberg (1981) op. cit.
pp. 6-25; Zolberg (1999), op. cit., pp. 276-80.
cit., p. 29; Weiner, op. cit., pp. 140-44; Zolberg (1981) op. cit.,
pp. 6-25; Zolberg (1999), op. cit., pp. 276-80.
“Ethics, National Sovereignty and the Control of Immigration.” International
Migration Review (30) 1, 1996, p. 171.
the inalienable right to emigrate is recognized in the American
Declaration of the Rights and Duties of Man, the American Convention
on Human Rights, the Universal Declaration of Human Rights and the
Working Group of Intergovernmental Experts on the Human Rights of
Migrants, Report E/CN.4/AC.46/1998/5, paragraph 28. United Nations,
Report of the Special Rapporteur on the Human Rights of Migrant
Workers, paragraph 13.
Ronald. “The Emergence of Trans-Pacific Migration,” in Cambridge Survey of World
Migration (Robin Cohen editor). New York: Cambridge University
Press, 1995, p. 536.
is illustrated very well in Venet, Fabienne. “La Otra Frontera”, in Migración:
México Entre Dos Fronteras, 1999, pp. 53-56. This is a report
prepared by a consortium of Mexican NGOs.