SECOND PROGRESS REPORT OF THE SPECIAL RAPPORTEURSHIP ON MIGRANT WORKERS AND THEIR FAMILIES IN THE HEMISPHERE

 

 

I.        INTRODUCTION

 

1.       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.

 

2.       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. [1]

 

3.       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 that:

 

(Governments 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 Migrant Workers.

 

4.       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.

 

5.       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.

 

6.       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.

 

7.       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.

 

II.       MAIN ACTIVITIES OF THE OFFICE OF THE SPECIAL RAPPORTEUR IN
           THE YEAR 2000

 

8.       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.

 

9.       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:

 

Both 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 migrants.

 

The two institutions trust that this Cooperation Agreement will lead to joint activities in the near future.

 

10.     In April of 2000, the IACHR was notified that it had been granted observer status by the Regional Conference on Migration (RCM). [2]      

 

11.     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.

 

12.     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).

 

13.     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. [3]

 

14.     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.

 

15.     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.”

 

16.     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.

 

III.      CASE LAW IN THE INTER-AMERICAN SYSTEM FOR THE PROTECTION AND PROMOTION OF HUMAN RIGHTS IN RELATION TO MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES

 

17.     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.

 

18.     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.

 

19.     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. [4] This request resulted in the Court ordering that provisional measures be taken in favor of certain persons in order to protect their basic rights. [5]

 

20.     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.

 

21.     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. [6] 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. [7]

 

22.     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”. [8]

 

The Request for Provisional Measures and the Court’s Decision [9]

 

23.     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.

 

24.    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. [10] On 7 December 1999, the Dominican Government rejected said precautionary measure.

 

25.     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.

 

26.     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.

 

27.     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.

 

28.             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:

 

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 Convention.

 

That 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…

 

That 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.

 

That 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.

 

29.     In its decision, the Court ruled to:

 

1.         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.

 

2.         Order the State of the Dominican Republic to abstain from deporting or expelling Benito Tide Méndez and Antonio Sension from its territory.

 

3.         Order the State of the Dominican Republic to allow Janty Fils-Aime and William Medina Ferreras to immediately return to its territory.

 

4.         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.

 

5.         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.

 

IV.      MIGRATION AND HUMAN RIGHTS

 

31.     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.

 

32.     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.

 

33.     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.

 

34.     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.

 

35.     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).

 

36.     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). [11] 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. [12] 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. [13] 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. [14]

 

Migration on the rise

 

37.     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. [15]

 

38.     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 migrate.

 

39.     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. [16]

 

40.     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. [17]

 

41.     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.

 

42.     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. [18]

 

43.     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. [19]

 

44.     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. [20]

 

45.     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 natural disaster. [21] 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.

 

Hemispheric trends

 

46.     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 America.

 

47.     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. [22] 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%). [23]

 

48.     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. [24] According to an INS report quoted by the IOM, the number of such undocumented in the country increases by 275,000 every year. [25] 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 countries. [26]

 

49.     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. [27]

 

50.     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. [28] Moreover, the Mexican government reports that some 330,000 undocumented citizens of the United States reside in the country. [29] The migration of Haitians to the Dominican Republic and the migration of Central Americans, especially Nicaraguans to Costa Rica [30] , are two other main foci of migration in the Caribbean and Central America. [31]

 

51.     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 skilled workers). [32] 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. [33]

 

52.     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. [34] Paraguay is another traditional destination with 350,000–400,000 migrant workers, mostly undocumented Brazilians (brasiguaios). [35]

 

53.     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.

 

54.     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 countries. [36]

 

55.     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) [37] and that among the members of the Andean Pact (Bolivia, Colombia, Ecuador, Peru and Venezuela). [38]

 

Migratory Policies and Violation of Human Rights

 

56.     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. [39]

 

57.     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 unemployment. [40]

 

58.     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.

 

59.     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. [41]

 

60.     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.

 

61.     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. [42]

 

62.     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. [43]

 

63.     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. [44] 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.

 

64.     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. [45] 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.

 

65.     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. [46] 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.

 

66.     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. [47]

 

 

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[1] The “Declaration 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.

At 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.

[2] 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.

[3] The symposium 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).

[4] Article 63(2) 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."

[5] 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.

[6] See, IACHR Report on Admissibility Nº 89/00, Case Nº 11.495, Juan Ramón Chamorro Quiroz (Costa Rica), 5 October 2000.

[7] See, IACHR Report on Admissibility Nº 28/01, Case Nº 12.189, Dilcia Yean and Violeta Bosica (Dominican Republic), 22 February 2001.

[8] See, Report 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 this report.

[9] Inter-American Court of Human Rights, “Provisional Measures requested by the Inter-American Commission on Human Rights with regard to the Dominican Republic”, 18 August 2000.

[10] 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 are true.”

[11] IOM. World Migration Report 2000. IOM Website: http://www.iom.int/iom/Publications/entry.htm.

[12] Stalker, Peter. Workers Without Frontiers. The Impact of Globalization on International Migration. Boulder, CO. Lynne Rienner Publishers, 2000. p.6

[13] According to 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.

[14] Stalker, op. cit., pp. 5-7.

[15] Stalker, op. cit., pp. 5-7.

[16] Loescher, Gil. Beyond Charity. Oxford University Press, 1993, pp. 18-23 and 103-108.

[17] Stalker, op. cit., pp. 1-23;  IOM, op. cit.

[18] United Nations, 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 Website: http://www.hrw.org/wr2k1/special/racism.html#migrants

[19] IOM, op. cit.

[20] Weiner, Myron. The Global Migration Crisis: Challenges to States and Human Rights. New York: Harper Collins College Publishers, 1995, pp. 10-12.

[21] IOM, op. cit.

[22] INS. Immigrants Admitted by Region and Selected Country of Birth: Fiscal Years 1992-99.  INS Website: www.ins.gov/graphics/aboutins/statistics/annual/fy94/744.htm

[23] IOM, op. cit.

[24] Stalker, op. cit. p.26.

[25] IOM., op. cit.; United States response to the questionnaire sent out by the Office of the Special Rapporteur.

[26] IOM., op. cit.; United States response to the questionnaire sent out by the Office of the Special Rapporteur.

[27] IOM, op. cit.

[28] IOM, op. cit.

[29] Mexican response to the questionnaire sent out by the Office of the Special Rapporteur.

[30] IOM, op. cit.; Mexican response to the questionnaire sent out by the Office of the Special Rapporteur.

[31] IOM, op. cit.

[32] IOM, op. cit.

[33] IOM, op. cit.; Venezuelan response to the questionnaire sent out by Office of the Special Rapporteur.

[34] IOM, op. cit.; Brazilian response to the questionnaire sent out by Office of the Special Rapporteur.

[35] IOM, op. cit.; Paraguayan response to the questionnaire sent out by Office of the Special Rapporteur.

[36] Responses from 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.

[37] Chile and Bolivia are associate, not full members of Mercosur.

[38] The North American Free Trade Agreement (NAFTA) among Canada, Mexico and the United States only contains language on the entry and exit of business people.

[39] Zolberg, 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.

[40] Zolberg, Op 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., 429:450.

[41] Teitelbaum, op. cit., p. 29; Weiner, op. cit., pp. 140-44; Zolberg (1981) op. cit. pp. 6-25; Zolberg (1999), op. cit., pp. 276-80.

[42] Teitelbaum, op. cit., p. 29; Weiner, op. cit., pp. 140-44; Zolberg (1981) op. cit., pp. 6-25; Zolberg (1999), op. cit., pp. 276-80.

[43] Weiner, Myron. “Ethics, National Sovereignty and the Control of Immigration.” International Migration Review (30) 1, 1996, p. 171.

[44] For example, 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 Helsinki Accords.

[45] United Nations. 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.

[46] Skeldon, Ronald. “The Emergence of Trans-Pacific Migration,” in Cambridge Survey of World Migration (Robin Cohen editor). New York: Cambridge University Press, 1995, p. 536.

[47] This situation 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.