V.      DISCRIMINATION, XENOPHOBIA AND RACISM AGAINST MIGRANT WORKERS IN THE AMERICAS

73.     Mary Robinson, UN High Commissioner for Human Rights, recently stated that large-scale migration has led to an alarming increase of racist and xenophobic incidents. [58] Migrant workers and their families are one of the groups most affected by this trend. Whatever their legal status, they are commonly the target of acts of discrimination and expressions of racism and/or xenophobia. [59] A very significant number of countries have been the scene of extremely dismaying xenophobic incidents in recent years. In Germany, France, Austria and Italy, for example, groups of the extreme right have violently attacked African, Turkish, Eastern European and Latino migrant workers. In Libya, local inhabitants organized violent pogroms aimed at guest workers from Ghana, Nigeria and Chad. Migrant workers from Bangladesh and Indonesia have been bloodily beaten in Malaysia. In South Africa, migrant workers from Angola, Mozambique and the Democratic Republic of Congo, among others, have been murdered or lynched by local inhabitants.

74.     The fact that xenophobia manifests itself in less-than-spectacular fashion in most countries of the world does not make it any less alarming. Foreign-born workers commonly encounter discrimination when looking for a job and their access to housing, social services and the legal system is often severely restricted. Moreover, they must put up with open hostility on the part of local people. In its most benign form, such hostility is expressed through jokes or insults, but at its most harmful level, it becomes social stigmatization. Migrants are often unfairly associated with all kinds of criminal activities or are labeled as lazy good-for-nothings trying to take advantage of the services offered by the receiving state.

75.     Moreover, migrant workers and members of their families are often harassed and mistreated by authorities. In many countries the police regularly check migrant workers to see if their papers are in order. They also commonly carry out raids in areas where foreigners get together or live, often with no apparent motive. Foreigners are arrested for no reason, and even insulted and/or beaten by the authorities. Even worse, all too often women migrant workers report being raped by police. Another side is seen when police fail to intervene when locals mistreat or attack foreign workers and refuse to investigate complaints. [60] Lastly, many countries have passed laws against foreign workers and maintain discriminatory practices, including bias in granting visas and blatantly discriminatory rules on employment. [61]

76.     Like migration, racism, xenophobia and other forms of discrimination are complex social phenomena. Thus an explanation, however brief, is in order regarding their nature and how they affect public policy toward migrants. According to Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination, [62] racial discrimination “shall mean any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the po ideology based on the idea that human beings should be separated into distinct racial groups and that these groups can be ranked on a hierarchy of intelligence, ability, morality and so on. Xenophobia refers to an irrational and obsessive hatred of people foreign or perceived as foreign. [63]

77.     Expressions of intolerance such as racism and xenophobia often go hand in hand with ethnocentrism, the belief of a particular group that its culture is superior to or more valuable than others. Ethnocentrism is commonly intertwined with racism, which reinforces the impression of supremacy of these cultures or peoples. Ethnocentrism derived from and exacerbated by religious beliefs, national unification movements, linguistic differences and historical developments, among other factors, and then disseminated by the educational system, has led to ethnocentric behavior becoming rooted in nearly all countries of the world, although to varying degrees. [64]

78.     As we said in the preceding section, political elements play an important role in government policy on migration. One of the major considerations is the receptivity of the local people to foreigners. [65] In regard to discrimination and xenophobia, studies show that in heterogeneous countries with a tradition of immigration (Canada, United States, Australia, Brazil, New Zealand and Argentina), people tend to be more open to the presence of immigrants. The intermingling of diverse cultures helps to demythologize the idea that immigration somehow has “harmful effects”. But in more racially, religiously and culturally homogeneous countries without a tradition of immigration (Germany, Italy), scarce contact with foreigners makes the local people more suspicious and intolerant. [66]

79.     Xenophobia, racism and discrimination against foreigners may not have received as much attention in the Americas as in other parts of the world, but that doesn’t mean that incidents are not common. The problem subsists without much attention being given to it, which reflects the absence of any sincere examination and open discussion of the matter in most countries of the region. The United States presents something of a paradox. Racial discrimination against citizens has been the subject of a long debate, yet xenophobia has received little or no attention. The question has been even more clearly ignored in the countries of Latin America and the Caribbean. The Regional Meeting of Experts for Latin America and the Caribbean on Economic, Social and Legal Measures to Combat Racism with Special Reference to Vulnerable Groups reached the conclusion that in most of Latin America and the Caribbean, the existence of racial discrimination and xenophobia is denied or said to be minor in scope by both government and the societies at large. The meeting's conclusions also pointed out that there is racial discrimination and intolerance aimed at groups such as indigenous peoples, African-Americans and Mestizos, against minorities such as Jews and gypsies, and against vulnerable groups such as women, children, the handicapped, youth and the elderly. [67]

80.     This same forum stressed that in Latin America and the Caribbean, migrant workers and members of their families  “in general suffer from structural discrimination that in its multiple forms either excludes them or limits their job opportunities and their access to state institutions under equal conditions. Moreover, racial prejudice and discrimination often comes into play in interpersonal relationships.” [68]

81.     In the Americas, discrimination, racism, xenophobia and other forms of intolerance have their roots in the racial and cultural preconceptions that the European conquerors brought with them and fostered during centuries of colonization. Intolerance and racial discrimination were reinforced during the era of national independence in the early 1800s, when new authorities simply continued the old policies of exclusion, stigmatization and subjection of indigenous peoples and African-Americans. [69]

82.     Where racial and religious intolerance and prejudice is deeply engrained, such as in Latin America, the Caribbean and certain parts of the United States, it is not surprising to see incidents of intolerance, discrimination and xenophobia aimed at migrant workers. It is, however, difficult to gauge the scope and gravity of the problem, as there are no reliable studies and statistical data. The only information available, fragmentary at best, has come from complaints lodged by human rights groups and media and government reports.

83.     Several countries in our hemisphere have been accused of xenophobia directed against migrant workers and members of their families. Numerous NGOs, the press and many Central American governments, including Guatemala and Honduras, have claimed that foreign workers in Mexico suffer from discrimination and xenophobia on the part of both the public at large and, above all, the authorities. Similarly, NGOs and the Government of Bolivia have pointed to xenophobia against Peruvian and Bolivians in Argentina. [70] For decades there have been formal complaints filed regarding mistreatment of Colombian immigrants and migrant workers in Venezuela. In Chile, human rights organizations and the press have reported on incidents that have mainly affected Peruvian immigrants. The governments of several Central American countries and Mexico, human rights NGOs and the media have pointed to xenophobic attacks and racial discrimination against Central Americans and Mexicans in the United States. In its response to the questionnaire sent out by this office, the US government readily recognizes that such incidents have occurred and expresses its willingness to take appropriate measures. Along similar lines, the Government of Costa Rica in its response admits that there have been outbreaks of xenophobia against Nicaraguan workers. Perhaps one of the most serious cases is in regard to the Dominican Republic, where it would seem that Haitians (and Dominicans of African-American descent) suffer systematic discrimination. In its annual report for 2000, Amnesty International denounces a number of abuses against Haitians that contravene international standards, including police round-ups, mistreatment and collective deportations. [71]

84.     migrant workers from the Americas. One example can be found in Japan, where Brazilian workers of Japanese descent are often harassed. Similarly, many South Americans, Caribbeans and Central Americans have faced open discrimination in Europe. Most recently the situation of some 150,000 Ecuadorians in Spain has been highlighted and attention brought to bear on complaints of mistreatment at the hands of both individuals and Spanish authorities.

85.     Although there is an alarming legal gap regarding the rights of migrant workers and members of their families, the same is not true with regard to protection against intolerance, racism and xenophobia. Except for Belize, Dominica, Grenada, Honduras, Paraguay and St. Kitts and Nevis, all OAS member states have signed and ratified the International Convention on Elimination of All Forms of Racial Discrimination. Moreover, as previously mentioned in this report, some countries of the Americas, such as Bolivia, Mexico, Chile, Guatemala and Paraguay, have either signed or ratified the 1990 International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families.

86.     This means that a large number of the countries of the Americas have taken on international commitments in this area. This office calls on all nations that have signed such agreements to take appropriate measures to assure that migrant workers and members of their families do not suffer violations of their basic rights due to acts of discrimination, racism or xenophobia. We recognize the efforts made by a large number of the governments of this hemisphere to contribute to the upcoming World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance convened by the General Assembly of the United Nations in Durban (South Africa) for September of this year. In our opinion, the conference presents an excellent opportunity for governments and civil society to sit down together and discuss ways to confront a matter of great concern.

87.     This section of the report has pointed out that there has been a major increase in acts of discrimination, racism and xenophobia directed at migrant workers. The thinking behind such attacks originated from certain deeply rooted preconceptions that are to be found in all cultures. Although not much attention has been drawn to such matters in the Americas, the situation nonetheless gives rise to concern. Many reports denounce xenophobia in countries where migrants have settled or through which they transit. Such outbreaks of intolerance threaten to exacerbate the structural vulnerability already facing migrant workers and their families. We have stressed that although most American states have taken on international commitments in this area, acts of discrimination, racism and intolerance still occur in a large number of countries without governments taking appropriate measures to curb them.

VI.      DUE PROCESS GUARANTEES

88.     The Special Rapporteurship has observed that migrant workers everywhere face diverse administrative or judicial procedures, either to settle disputes over wages, housing, health care or other benefits, or to settle some matters related to their status as migrants. In some cases they must appear in criminal proceedings, either as defendants, victims or witnesses. Procedural practices and regulations vary throughout the Americas, which underscores the need to adopt minimum uniform standards.

89.     As a starting point we should recall that international human rights law establishes minimum norms for due process applicable to any situation in which an individual’s human rights are at stake. Article 1(1) of the American Convention on Human Rights and the equivalent articles in other international instruments set out that States Parties have the obligation to respect and ensure the rights covered in the text. Article 2 of the American Convention, moreover, obliges states to adopt the measures necessary to give effect to those rights. Taken together these two articles mean that any state whose judicial organization and procedures do not include mechanisms to protect such rights, must create them and ensure that they are accessible to all persons under their jurisdiction. If such mechanisms do exist but are not effective, the state is obliged to reform them and make them truly effective guarantees of the rights in question.

90.     Articles 8 and 25 of the American Convention on Human Rights are those traditionally cited in relation to the developing doctrine concerning judicial guarantees and protection. These two articles cover any situation in which it becomes necessary to determine the content and scope of the rights of a person under the jurisdiction of a state party, be it in a criminal, administrative, tax, labor, family, contractual or any other kind of matter. These rules establish a baseline of due process to which all immigrants, whatever their situation, have a right.

91.     Certainly international instruments go into greater detail when it comes to criminal law. In addition to Article 8, with its specification of various rights associated with the guarantee of a fair trial, other articles come into play, including Article 4 (right to life and conditions in which the death penalty can be properly imposed), Article 5 (prohibition of torture and cruel, inhuman, or degrading punishment or treatment), Article 6 (forced labor as a punishment), Article 7 (conditions for preventive detention) and Article 9 (freedom from ex post facto laws).  Moreover, the right to prompt recourse covered by Article 25 of the Convention also applies in criminal cases. These guarantees are now in force in all our countries, either through the convention having been incorporated into domestic law or because national constitutions or legislation provide for them. If their implementation is deficient in any country, both nationals and immigrants are affected.

92.     In the criminal sphere, the Rapporteurship suggests that there be discussion on measures needed to ensure the right of all immigrants, whatever their status, to a fair trial, with special attention given to the vulnerability of a person facing criminal proceedings in a foreign country. First of all, it is of the essence that a person understands the charges against him and the full range of procedural rights available to him. To this end, translation and explanation of all legal concepts in the language of the defendant is essential and should be financed by the state.

93.     Next we would suggest that domestic law provide for mechanisms to assure prompt access to a person’s consulate and to facilitate any assistance that his consular officers may be able to provide. In the Vienna Convention on Consular Relations, [72] which has been ratified by many countries of the Americas, this is clearly stated as a duty of states. There is widespread agreement that this rule is now part of customary international law. Moreover, Advisory Opinion OC-16/99 of the Inter-American Court of Human Rights recognizes that this rule confers rights upon foreign nationals subject to prosecution and that non-compliance annuls the outcome of the criminal proceedings precisely because due process has not been respected.

94.     The conditions facing migrant workers and members of their families when detained also merit attention. We will not go into detail here as the next section of the report treats this matter more fully. Nonetheless, we would like to stress that states have the obligation to ensure that detained aliens, especially those detained for administrative reasons, not be exposed to any conditions or treatment that would violate their basic rights or endanger their physical integrity or lives.

95.     In any non-criminal proceedings against a migrant worker, a certain quantum of due process must also be respected. Certainly this does not imply that the same guarantees deemed indispensable for criminal proceedings must be necessarily ensured, for example, when determining what sanctions to apply for a transit infraction. However, whenever effective enjoyment of a right or a legitimate interest is at stake, the authorities should decide the case only after the interested party has been duly heard. This quantum of due process depends on what outcomes is expected of the proceedings. In criminal law, the accused party can suffer loss of freedom (and in some cases and countries, even of life) and therefore maximum guarantees are needed to prevent any miscarriage of justice. As the importance of the values at state diminishes, the content of due process may also decline to a degree compatible with the general principle and the celerity and efficacy of decisions. The principle of due process, with this degree of flexibility, applies not only to court decisions, but also to decisions made by administrative bodies. It is outside the scope of this report to cite all the procedural guarantees to be applied in all judicial or administrative contexts. Accordingly we will simply repeat the principle that a minimum of due process is necessary even in administrative law, as established by the European Commission on Human Rights in Hortolomei v. Austria. [73]

96.     On the other hand, it is necessary to analyze in more detail the question of due process in cases on the status of immigrants and to measures to exclude, deport or expel them as implemented by American states as part of migration policy. Such discussion is needed because practices and regulatory trends vary greatly in the region. Although we do not think it necessary to push for uniform regulations and procedures, we do believe that a dialogue on minimum norms established by international law is needed.

97.     To begin we reiterate that international human rights law does not limit a state’s sovereignty to define its migration policy and to control its borders, including control of the flow of persons over them. The only legal limits in this area refer to the following:

1.         A state cannot impede its own citizens from exiting, entering or remaining in its territory. In this regard, the practice of requiring citizens to obtain an exit visa, separate from the requirement that they obtain a passport (or in the case of minors, that they have due authorization from their parents), constitutes a violation of the right to freedom of movement and residence enshrined in Article 22 of the American Convention on Human Rights. Close study of de facto deportation of a country’s own nationals is needed, especially in the case of minors deported or expelled along with alien parents. This is a problem that has been examined from the perspective of domestic law in several of our countries, but to the best of our knowledge, has not been treated in the jurisprudence of any international human rights body. Here we simply wish to state the problem without offering any preformed opinion of how it should be solved. We do, however, think it appropriate to recommend an in-depth study of the matter.

2.         No state can return a foreigner to a country when there are well-founded reasons to believe that he will be persecuted on account of his race, religion, nationality, membership of a particular social group or political opinion {Convention relating to the Status of Refugees (1951) and its Additional Protocol (1967)}. This rule, known as non-refoulement, has entered into customary international law and is considered a norm of jus cogens. It also has equivalents in the Convention against Torture and Other Cruel, Inhumane and Degrading Treatment or Punishment (Article 3) and the Inter-American Convention Against Torture (Article 13). Both these treaties prohibit the return of a person to a territory where he would be in danger of being tortured. In the Americas and elsewhere, the principle of non-refoulement has gradually been broadened to cover persons fleeing from situations of widespread political violence or civil war {Declaration of Cartagena (1984), Declaration of San José (1994)}. Obviously, the rights of refugees and of asylum seekers do not lie within the mandate of this Rapportteurship, although the relationship is undeniable. We refer to them here simply because the principles mentioned above have a corollary that is directly related to due process in exclusion or deportation procedures–at the very least a state is obliged to give the person or persons in question a reasonable opportunity to prove that they are refugees or to file a petition for asylum. In this regard, the Rapporteurship is concerned by overly-restrictive practices during interdiction on the high seas and by recent legislation in some receiving countries that would severely limit the opportunity people have to request asylum.

3.         In migration policy, states cannot discriminate for reasons of race, color, sex or gender or sexual preference, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition {American Convention on Human Rights, Article 1(1)}. This principle of equality and non-discrimination is also enshrined in Article 26 of the International Covenant on Civil and Political Rights and in Article 24 of the American Convention. Sexual preference is included as a category as it is encompassed by the very concept of sex, according to the United Nations Human Rights Committee (Toonen v. Australia). [74] The principle is extended to the enjoyment and exercise of all the rights enshrined in international instruments and to all social benefits provided by a state {International Covenant of Economic, Social and Cultural Rights, Article 2(2)}. The Rapporteurship considers that there is no reason not to apply the principle of non-discrimination to migration policy. Nonetheless, it is clear that in the field of migration policy it is permissible to distinguish between citizens and foreigners and between regular and irregular immigrants.

4.         An alien lawfully in a country may be expelled or deported from it only pursuant to a decision made in accordance with law {Article 22(6) of the American Convention on Human Rights}. This means that states must enact legislation conferring powers for deportation and that all decisions must be made according to the regulations in place and not arbitrarily. Moreover, the meaning of “law” in Article 22 is not limited to acts of the legislative branch in a formal sense. In the material sense the context of such acts must be in full accordance with the constitution and the rule of law, including conformity with all obligations acquired by international treaties.

5.         Lastly, international instruments contain a clear prohibition directly applicable to the matter at hand, namely the collective expulsion of aliens {Article 22(9) of the American Convention on Human Rights}. Although the term itself is not defined, it seems to us that there is no magic number separating individual from collective expulsions. We believe that expulsion becomes collective when the decision to expel is not based on individual cases but on group considerations, even if the group in question is not large. It would go against common sense to think that a state could sidestep the prohibition on collectively expelling a large number of persons in a single act by simply expelling a few dozen people at a time until the same large number has been reached relatively quickly. The conclusion is that states must judge each case of expulsion or deportation individually.

98.     Beyond these norms of positive law, migration policy is circumscribed by general respect for human rights, and in that context, by guarantees of due process. Returning to our analysis of a quantum of guarantees and its relationship with the value or right at play in any single case, we would like to say that in procedures on exclusion or expulsion, the stakes of migrant workers and their families are indeed high. They may not be equal to personal liberty and the danger of losing it for a number of years, which is what is commonly at stake in criminal proceedings. Thus we will not maintain that for exclusion or expulsion cases all the guarantees required for a fair trial in the criminal sphere must be in place. Nevertheless, a decision on the legal status of a migrant worker does affect his chances of making a living, working under decent conditions, feeding his family and providing an education for his children. It will also affect his right to raise a family and the special protection extended to minors within a family. In some cases, personal liberty may be affected for the duration of the proceedings. Consequently, the value at issue in such proceedings is similar to liberty, or at least closer to liberty than would be the case in other administrative or judicial proceedings. Thus, at the very least, minimum threshold of complete of due process guarantees should be provided.

99.     In examining practices in the Americas, we have found the absence of clear norms providing such guarantees in many cases. Moreover, there are great differences from country to country. This leads us to suggest that it is time for discussion on the minimum norms of due process to be applied in cases on status, exclusion and expulsion. The time is not ripe for proposing instruments in this area, precisely because a rigorous debate involving governments, civil society groups, academia and international bodies for the protection of human rights should take place first. But we would like to announce that we are ready to contribute to the development of such an instrument when the time comes. For now, with the intention of opening the debate, we offer the following considerations.

A.         An accountable and impartial adjudicator. Decisions in the area of migration cannot be left to non-specialized administrative or police officials. Public officials responsible for such decisions must be accountable before the law, to superiors and to any horizontal control bodies charged with reviewing decisions. The process of appointing an adjudicator and the status of the office within the administrative structure of the state must guarantee impartiality and protection against any possible pressure or influence. We are not saying that only judges should make such decisions. In our opinion, conferring the power on administrative officials is compatible with international human rights law. Nonetheless, the requirements of impartiality and accountability mentioned above must be met.

B.         The right to be heard. A migrant worker must have and be able to effectively exercise the right to be heard, to have his say and defend his right not to be expelled. The right to a hearing should include the right to be informed of evidence to be used against him and the opportunity to counter it, and to produce and present relevant evidence in his own favor, with a reasonable amount of time granted to do so.

C.         Information, translation and interpretation. An immigrant, whatever his legal status, must be able to understand the proceedings he is involved in and all the procedural rights he is entitled to. Thus, translation and interpretation in his language must be made available as necessary.

D.         Legal Counsel. A person facing possible expulsion must have the opportunity of being represented by an attorney of his choosing or other qualified persons. It may be that the state cannot be asked to provide a lawyer free of charge as in criminal proceedings but free representation should at least be offered to indigents. Further, the information referred to in the preceding paragraph should include some form of specialized advice or the rights that assist the immigrant.

E.         Judicial Review. As has been mentioned, the decisions under consideration can legitimately be administrative in nature. However, judicial review must always be provided for, either through appeal in administrative law or by recourse to amparo or habeas corpus. This does not mean that every administrative decision on deportation must be examined judicially de novo, but we do believe that judges should maintain at least baseline oversight of the legality and reasonableness of administrative law decisions in order to comply with the guarantees provided for in Article 1(1) of the Convention and the right to prompt and effective recourse set out in Article 25.

F.         Access to Consular Officials. We have already said that timely access to consular officials must be ensured, above all for detainees. Such access should be made available in accordance with the terms of the Vienna Convention on Consular Relations.

G.         Appropriate Detention Conditions. Persons in detention must be treated humanely and in a way that does not endanger health or life. Rules governing detention should meet the minimum levels set out in international instruments such as the Convention against Torture and Other Cruel, Inhumane and Degrading Treatment or Punishment [75] and the Standard Minimum Rules for the Treatment for Prisoners, [76] among others.

100.   In summary, this section has presented a brief overview of the guarantees of due process that safeguard the rights of migrant workers involved in judicial proceedings in countries of destination or transit. It indicates that in the Americas, migrant workers face a variety of judicial and administrative procedures under both civil and criminal law. It emphasizes that states must provide the guarantees necessary to ensure that all administrative and judicial proceedings are fair. To this end, certain rules of due process have been suggested that, joined to the international obligations already in force, would contribute enormously to assuring that decisions on deportation are made with juridical certainty and security and to establishing minimum standards for legislation and legal proceedings throughout the hemisphere. Nevertheless, it must be stressed that the rules suggested here are not the only possibilities available and that other principles could be brought into play. We offer them simply as a starting point for discussion.  

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