CHAPTER VI 

THIRD PROGRESS REPORT OF THE RAPPORTEURSHIP ON MIGRANT
WORKERS  AND THEIR FAMILIES

TABLE OF CONTENTS

I.        INTRODUCTION    

II.       MAIN ACTIVITIES OF THE RAPPORTEURSHIP IN 2001 

III.    JURISPRUDENCE DEVELOPED BY THE INTER-AMERICAN SYSTEM
          FOR MIGRANT WORKERS AND THE MEMBERS OF THEIR FAMILIES  

IV.      ECONOMIC CONSEQUENCES OF MIGRATION        

V.       GUIDING, SMUGGLING AND TRAFFICKING OF MIGRANTS    

VI.      DISCRIMINATION, RACISM, AND XENOPHOBIA: REFLECTIONS
           ON THE WORLD CONFERENCE AGAINST RACISM HELD IN DURBAN,
           SOUTH AFRICA (SEPTEMBER 2001)

VII.     VISIT OF THE RAPPORTEURSHIP TO COSTA RICA, NOVEMBER 19-21, 2001 

VIII.     CONCLUSIONS AND RECOMMENDATIONS     

IX.      APPENDIX:  NEW REPLY OF THE STATE OF EL SALVADOR
          TO THE QUESTIONNAIRE SENT BY THE RAPPORTEURSHIP
          TO COLLECT INFORMATION ON MIGRANT WORKERS
          AND THEIR FAMILIES IN THE AMERICAS  

THIRD PROGRESS REPORT OF THE RAPPORTEURSHIP ON MIGRANT
WORKERS  AND THEIR FAMILIES

I.          INTRODUCTION

1.          In light of the enormous importance that migration has acquired in the past decade, by virtue of its broad mandate for the protection of human rights, the Inter-American Commission on Human Rights (IACHR) of the Organization of American States (OAS) decided to devote special attention to the situation of migrant workers and their families in the Americas.  Therefore, in 1997, it created the Special Rapporteurship on Migrant Workers and their Families.  The IACHR explicitly limited the scope of action of the Rapporteurship to migrant workers and their families who live abroad.  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, and that refugees, internally displaced persons, stateless persons and asylum seekers might at times become migrant workers.  (The reverse is also true.)

2.          At its 106th regular session held in March 2000, the IACHR appointed Juan E. Méndez, an Argentine jurist, Commission member and current President of the IACHR, as the Special Rapporteur on Migrant Workers and their Families.  To carry out his work as Special Rapporteur on Migrant workers, Juan Méndez receives support from the Executive Secretariat of the IACHR and a small team composed of two attorneys and a political scientist.  The team consists of María Claudia Pulido, attorney at the IACHR; Helena Olea, attorney and research assistant to Juan Méndez at Notre Dame University; and Andreas Feldmann, a political scientist and researcher of migration-related issues.  It is important to mention that, due to budgetary constraints, these persons help the Rapporteurship on a half or quarter-time basis.

3.          The IACHR decided to make the situation of migrant workers and their families a priority, given the serious human rights situation facing these people.  Over the years, the IACHR has had direct knowledge of the difficulties faced by migrant workers during on-site visits, as well as through complaints of human rights violations that it has received and special hearings held to address the issue.  The IACHR considers migrant workers and their families to be an especially vulnerable social group, often subjected to various kinds of abuse and systematic violation of their basic rights.

4.          Moreover, the Commission decided to create the Rapporteurship on Migrant Workers, taking into account the importance that OAS member states have attached to this matter in their agenda for the Americas.[1]

5.          The Rapporteurship on Migrant workers has several objectives.  These include, a) to raise awareness of the duty of states to respect the human rights of migrant workers and their families; b) to present specific recommendations to member states regarding the protection and promotion of the human rights of migrant workers; c) to prepare special reports and studies concerning this issue; and, d) 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.

6.          With respect to petitions, the IACHR is currently examining five cases of alleged violations of human rights of migrant workers and their families in the Americas. These include, two cases against the Dominican Republic, concerning the expulsion or threat of expulsion from the Dominican Republic of Haitian citizens and Dominicans of Haitian origin (Cases 12.271[2], 12.189)[3]; two cases against Costa Rica alleging expulsion of Nicaraguan citizens from Costa Rican territory (Cases 11.529[4] and 11.495[5]).  Furthermore, in December 2001 the IACHR held a special hearing to examine a case against the United States involving the death of immigrants while they were crossing the border at unauthorized points (Case 11.072).  The IACHR is in the process of analyzing the admissibility of the case.

7.          The IACHR's initiative to establish a Special Rapporteurship on Migrant Workers and Members of their Families has been well received by the Heads of State and Government of the Americas.  In this connection, in the Plan of Action of the Second Summit of the Americas in Santiago, Chile in 1998, the heads of state and government of the Americas indicated that ”Special efforts will be made to guarantee the human rights of all migrants, including migrant workers and their families."  The states further undertook to seek full compliance with, and protection of, the human rights of all migrant workers; adopt measures to eliminate 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.  As to the activities of the Special Rapporteur, the states said that “(the 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.“[6]

8.          The interest of the states to increase efforts to improve the situation of migrant workers in the Americas was reiterated recently by the heads of state and government at the Third Summit of the Americas, held in April 2001 in Quebec City, Canada.  On that occasion the highest authorities of the Americas conferred on the OAS a special mandate to establish:

an inter-American program within the OAS for the promotion and protection of the human rights of migrants, including migrant workers and their families, taking into account the activities of the IACHR and supporting the work of the IACHR Special Rapporteur on Migrant Workers and the UN Special Rapporteur on Migration.[7]

9.          Regrettably, despite the interest expressed by the states in various declarations, the progress of the work of the Rapporteurship has been impaired by lack of financial support.  Accordingly, some of the activities the Rapporteurship needs to carry out in the framework of its mandate have been curtailed by insufficient financial support on the part of member states.  The activities carried out so far by the Rapporteurship owe their existence exclusively to a small contribution from the regular fund of the OAS and a $50,000 contribution made by the Mexican government.  This year the financial situation of the Rapporteurship has somehow improved, since recently the Government of Mexico donated an additional $25,000 and the Special Rapporteur has advanced negotiations to obtaining material endorsement from the Ford Foundation.  These endorsements notwithstanding, it is important to underline that to be able to persevere with its important work, the Rapporteurship needs solid financial contributions.  At the same time, diversifying the voluntary fund base of support, even with small contributions, would very much contribute to legitimize the work undertaken by the Rapporteurship.

10.          The IACHR has deemed it suitable to prepare annual progress reports on various aspects of the human rights situation facing migrant workers.[8]  Progress reports have been chosen over a single comprehensive report on the situation of migrant workers in the Americas, since it would be difficult to prepare such a report given the scope and complexity of the phenomenon and, in particular, given the scant resources available to the Rapporteurship.  The report presented here has been prepared in that spirit.  The report addresses a wide variety of matters pertaining to the situation of migrant workers in the Americas.  It is important to underline that the report is not intended to be comprehensive but, rather, to present aspects of and background information on important issues pertaining to the situation of migrant workers in Americas.

11.          The present report is organized as follows.  Following this brief introduction, the second section covers the main activities carried out by the Rapporteurship in 2001. The third section examines the jurisprudence developed in 2001 in the connection with migrant workers and their families and migration-related areas within the framework of the inter-American system for the protection of human rights (the Commission and the Inter-American Court of Human Rights).  The forth section offers a concise analysis of the economic impact of migration on both migrant-receiving and supplier countries. Subsequently, the report looks at problems related to human smuggling and trafficking. Later on, in the sixth section, the report delves into the problem of xenophobia, racism and discrimination against migrant workers in the Americas in the context of the Declaration that came out of the recent World Conference on Racism, Racial Discrimination, Xenophobia and other Forms of Intolerance organized by the United Nations in Durban, South Africa, in September 2001.  The report ends with conclusions and recommendations.  The appendix contains recently received replies of states to the questionnaire of the IACHR on the situation of migrant workers and their families in the Americas.  It should be recalled that two years ago the Rapporteurship sent an extensive questionnaire to the OAS members states to collect information about migrant workers and their families in the hemisphere.  The questions contained therein dealt with diverse issues, inter alia, demographic trends, xenophobia, equality before the law, illegal trafficking, judicial guarantees and due process, payment of taxes, and access to social services.

II.          MAIN ACTIVITIES OF THE RAPPORTEURSHIP IN 2001

12.          In accordance with the mandate assigned by the IACHR, in the year recently ended the Rapporteurship performed a series of activities, which included: a) monitoring of the overall situation of migrant workers and their families in the hemisphere; b) organization of on-site visits to OAS member states and attendance at conference and fora on the issue of migration; c) development of institutional links with inter-governmental agencies and civil society entities that work on behalf of migrant workers in the Americas; d) search for sources of financing for the Rapporteurship; and, e) research with a view to preparation of the final report as well as special studies.

13.          As regards monitoring the situation of migrant workers and their families, the Rapporteurship observed developments in the area of migration in the Americas with great interest.  It is important to mention that observation and monitoring activities are crucial for the work of the Rapporteur because they provide a broader perspective and a better understanding of the complex situation of migrant workers and their families in the Americas.  The Rapporteurship conducted several follow-up and monitoring activities during the past year.

14.          Among other endeavors, the Rapporteurship followed with interest the discussions on xenophobia and racism at the World Conference organized by the United Nations and how they concerned the situation of migrant workers.  Furthermore, it paid particular attention to respect for due process guarantees and rights as they relate to migrant workers in the Americas.  In that connection, one of the most important activities was to monitor and analyze political discussions and changes in the area of migration laws and controls in the Americas that came about in response to the recent terrorist attacks in the United States.  In that respect, it should be mentioned that the Rapporteurship notes with some concern that, in their eagerness to strengthen migration controls to avert acts of terrorism, some states have implemented measures that violate fundamental rights of migrant workers and their families. [9] The Rapporteurship has also devoted time to monitoring the development of other pressing issues, inter alia, illegal trafficking in migrants and, in particular, the effects political and economic crises have on migration flows in the Americas.  With respect to the latter, the Rapporteurship has monitored with particular interest the impact on migration of the serious economic and political crises in Argentina and Venezuela.

15.          As part of the activities connected with its mandate, over the past year the Special Rapporteurship also established contacts with several governments with a view to conducting on-site visits in order to observe conditions for migrant workers on the ground.  It is important to stress that on-site visits are an essential element in the mandate of the Rapporteurship since they enable it to perform its work effectively.  In the course of such activities important contacts are made and valuable information gathered on the situation of migrant workers and their families.  This helps the Special Rapporteur to prepare reports on specific situations and to present well-documented and responsible recommendations to States on issues related to the treatment of migrant workers and their families.

16.          During the period covered by this report, the Rapporteurship paid a short visit to Costa Rica from November 19 to 21, 2001, and organized similar visits to Mexico and Guatemala that will be conducted in the first half of the year in progress.  As to the visit to Costa Rica, the Rapporteurship decided to take a advantage of its trip to San Jose to attend in its capacity as an observer the meeting of the Consultative Group of the Regional Conference on Migration (RCM) held in November 2001, in order to collect information on the situation of migrant workers in that country.  The team from the Rapporteurship also investigated certain initiatives discussed at the RCM, among them, the probable implementation by the International Organization for Migration (IOM) of an agreement on Assisted Return of Extra-Regional Migrants.

17.          The Rapporteurship also arranged with the Governments of Guatemala and Mexico to conduct on-site visits in order to observe on the ground the situation of migrant workers in different parts of those countries, including border areas.  Difficulties of a personal nature prevented the Special Rapporteur from carrying out these visits in 2001.  The Rapporteurship deeply regrets this turn of events.  However, arrangements have already been made to conduct the visits in the first half of this year.  The team led by Mr. Juan Méndez visited Guatemala from March 17 to 24.  As regards Mexico, the Rapporteurship and the Government of Mexico agreed that the on-site visit should be carried in May or June 2002.

18.          With respect to participation in fora on migration, as mentioned, the Rapporteurship attended the meeting of the Consultative Group of the Regional Conference on Migration (RCM) held in San José, Costa Rica, from November 14 to 16, 2001.  It should be mentioned that in April 2000 the IACHR was accorded official observer status at this important forum.  It is essential for representatives of the Rapporteurship to attend meetings of the RCM, as it enables the Office to monitor closely technical discussions held by several countries in Central and North America and the Caribbean on multilateral control and cooperation mechanisms.  Attendance at such meetings is crucial because it help to attain a better understanding of the viewpoints of states on issues connected with control and management of migration policy.  Officials from the Rapporteurship will represent the IACHR at the Seventh Annual Vice-Ministerial Meeting of the RCM to be held in May 2002 in Guatemala.  The Rapporteurship also monitored closely the meetings of the South American Conference on Migration.[10]

19.          On the subject of development of institutional links with inter-governmental agencies and civil society entities that work on behalf of migrant workers and their families, the Rapporteur and his team held several meetings in 2001 and made contact with diverse organizations that study and/or monitor the phenomenon of migration in the Americas.  Those meetings provided a framework for the pursuit of joint activities and information exchange in support of initiatives aimed to ensure the well-being and respect for the fundamental rights of migrant workers and their families.  It should be stressed that the development of institutional links with inter-governmental and civil society organizations is very important because it helps to acquire a fuller understanding of migration-related issues in the Americas.

20.          This year the Rapporteurship held several meetings with representatives of the IOM.  In this regard, it is worth noticing that in 2000 the IACHR and the IOM signed an institutional cooperation agreement.  The purpose of that agreement is to enable the two institutions to jointly implement different activities intended to promote observance of human rights of migrant workers and their families in the hemisphere.  Accordingly, in the framework of the Regional Conference on Migration, officials from the Rapporteurship visited the headquarters of the IOM in San José to examine the possibility of organizing a special joint program.  In order to discuss the contents of the agreement, representatives of the IOM traveled in January 2002 to the headquarters of the IACHR in Washington, D.C. to hold talks with the Executive Secretariat and the Special Rapporteur on Migrant Workers.  At the meeting, both agencies undertook to work on the design and preparation of a program on protection of human rights.  This initiative comes under the framework of the mandate assigned to the OAS by the heads of state and government at the Second and Third Summits of the Americas.

21.          In the period covered by this report, the Rapporteurship also held several meetings with representatives of the Latin American and Caribbean Demographic Centre (CELADE) of the Economic Commission for Latin America and the Caribbean (ECLAC).  In the course of those meetings, officials from the two organizations agreed to exchange information on issues relating to the situation of migrant workers and their families in the hemisphere.  It should be underscored that the collaboration of CELADE, a high-level academic center with decades of experience in population and migration studies, is very important and will certainly be a positive contribution to the work of the Rapporteurship.  In this respect, in December 2001, representatives from Rapporteurship met with representatives of CELADE at the headquarters of the latter in Santiago, Chile, to work on the preparations for a seminar on migration and human rights.  The event, which will be attended by top experts from North, South, and Central America, and from the Caribbean, will be jointly sponsored by: CELADE, the IOM, the United Nations Development Programme (UNDP), and the Office of the United Nations High Commissioner on Human Rights (UNHCHR).  Through the Rapporteurship, the IACHR will take part in this event as an auspice.  The meeting has been tentatively scheduled for September 2002 at the headquarters of ECLAC in Santiago, Chile.

22.          On the other hand, the Rapporteurship continues to cultivate ties with civil society organizations.  It  has maintained contact with the Regional Network of Civil Organizations for Migrations (RNCOM).  In that connection it should be mentioned that the Rapporteurship commented on the report "Regional Guidelines for the Protection of Migrant Human Rights in Situations of Arrest, Detention, Deportation and Reception," a generic document on protection for migrants prepared by the RNCOM, which will be presented for discussion and possible adoption at the next Vice-Ministerial Meeting of the Regional Conference on Migration.  The Rapporteurship also maintains fluid communications with nongovernmental organizations and academic centers, which enables it to access important information on the general situation of migrant workers and on cases of particular interest.  Contact with these organizations also serves to disseminate the Rapporteurship’s activities.

23.          Similarly, as part of the efforts to study migration laws in the hemisphere, in December 2001 the Rapporteurship reached an agreement with the Law Faculty of Villanova University in the United States  to carry out a joint study on comparative legislation on migration.  The study will cover six countries in the hemisphere: Mexico, Canada, United States, The Bahamas, Argentina, and Venezuela.  Under the agreement, this project will have a duration of one year.  It is important to stress that the cooperation of academic centers significantly strengthens the work of the Rapporteurship.

24.          In addition, the Rapporteur and his team made efforts to raise funds so as to continue the activities of the Office.  It is important to underscore that the work carried out so far has only been possible thanks to the generous contribution of the Government of Mexico.  In order to secure other sources of financing and thereby consolidate the work of the Office, contact was made with a number of regional foundations and organizations that provide support for research and monitoring activities in areas connected with human rights and migration.  As mentioned before, the Rapporteurship is close to obtaining an important contribution from the Ford Foundation that will serve to supplement the grant provided by the Government of Mexico.

25.          In December 2001, meanwhile, representatives of the Rapporteurship held a meeting with the Committee on Juridical and Political Affairs (CAJP) of the OAS.  On that occasion, the representatives of the Rapporteurship presented a detailed report of it activities.  The CAJP has expressed an interest to strengthen joint cooperation activities with the IACHR pursuant to resolution 1775 of the OAS General Assembly concerning the human rights of all migrant workers and their families.

26.             The Rapporteurship, furthermore, recently began work on the preparation of a second questionnaire, which will soon be sent out to the members of the Organization.  The questionnaire deals with legislation and due process practices in the hemisphere in the area of migration.  In the course of the year in progress, the questionnaire will be sent to the 35 member states of the Organization, as well as to lawyers and organizations that provide social assistance and legal counsel to migrant workers.  This second questionnaire will enable the Rapporteurship to examine in greater depth the laws and due process practices in effect with respect to migrant workers deprived of liberty or in process of expulsion to their countries of origin.

27.          At the same time, the Rapporteurship is contemplating the possibility of collaborating in a project on trafficking of women and children for sexual exploitation in the Americas, which is being jointly conducted by the Inter-American Commission on Women and the Inter-American Institute of the Child of the OAS in association with the Institute of Human Rights (IHRL) of the Law School of the University of DePaul in Chicago. The project will study trafficking of minors and women in various countries in the region.  Its aim will be to contribute to the formulation of proposals and policies to curb this practice.

III.      JURISPRUDENCE  DEVELOPED BY THE INTER-AMERICAN SYSTEM ON MIGRANT WORKERS AND THE MEMBERS OF THEIR FAMILIES

28.          The Special Rapporteurship deems it appropriate to submit an annual report to the General Assembly on the case law developed by the inter-American system of protection of human rights on the rights of migrant workers and their families.  The decisions of the Inter-American Commission and Court are crucial elements that contribute to determine the scope of the human rights of migrant workers and their families.  The decisions also determine how those rights can be effectively protected and ensured.

29.          During the year 2001 the inter-American human rights system had the opportunity to approach the problems of migrant workers and their families through various cases.  During this period both the Commission and the Court discussed the right to a nationality of migrant workers and their families, and the impact of the violations of this right on other rights such as the right to education and to property.  In an Admissibility Report the Commission discussed the migrant workers’ right to a fair trial in expulsion and deportation proceedings.  Finally, the Commission approved the Report on the Merits of a case of individuals classified as “excludable aliens” by the United States’ immigration legislation.  This last petition, presented on behalf of a group of Cubans of the “Freedom Flotilla” which left the Mariel Port in Cuba on 1980, discusses the right to freedom and the right of protection from arbitrary arrest.

30.          The purpose of the current section of the report is to present the case law developed by the inter-American system during the year 2001.[11] It comments the decisions of the inter-American system on migrant workers and their families.  The Commission expects the scope of these decisions to have a wider impact not only within the States against which they are submitted, but also in all of the Americas.  Specially, the Court’s decision on the case of Baruch Ivcher Bronstein, and the Commission’s Report on the case of Rafael Ferrer-Mazorra et. al. bring forward important elements in regards to the human rights protection of migrant workers.

Right to a Nationality

31.          In the year 2001, the Inter-American Commission declared the case 12.189 against Dominican Republic admissible.[12] Dilcia Yean (4 years of age) and Violeta Bosica (15 years of age) are two minors.  The Dominican Republic has denied them their nationality, in spite of the fact that they were born in Dominican territory, and that the State applies the principle of ius soli.  The petitioners sustain that Dominican public officials responsible for the civil registry refuse to register the girls, alleging that their last names are foreign and their parents were in the country without authorization.

32.          The non-governmental organizations that act as petitioners of this case assert that the minors are exposed to the imminent danger of being deported from their country of origin, and one of them cannot attend school because she does not have a birth certificate.  The petitioners indicate that such actions violate the right to a nationality of the minors, established on Article 20 of the American Convention.  The petitioners sustain that internal remedies were exhausted because the denial to issue a belated birth declaration by the public officials of the registry of the “Oficialía Civil de Sabana Grande Boyá” was appealed by the mothers of the minors before the Procurator of the Judicial District of Monte Plata, who confirmed the decision to deny them the issuance of a belated birth declaration.  On the other hand, the Dominican State indicated that the authorities acted according to the law and that the petitioners had not exhausted domestic remedies.

33.          It is important to point out that on August 27, 1999, the Commission granted precautionary measures in favor of the minors, in order to avoid irreparable damage.  Specifically, the precautionary measures attempted to avoid that they would be expulsed out of the Dominican Republic and in particular to protect Violeta Bosica’s right to education due to her incapability to demonstrate her Dominican nationality.

34.          The Commission admitted the case on February 22, 2001.  The Commission found that the State had not demonstrated which were the adequate and efficient domestic remedies that the petitioners should have exhausted, applying the exception of Article 46(2)(a) of the American Convention.  Alternatively, the Commission found that the petitioners had exhausted the existing remedies through the proceedings, and thus Article 47(1) would be applicable.  In this case the Commission indicated “the exhaustion of domestic remedies is closely linked to the merits since the State has the obligation to provide for effective judicial remedies, in accordance with the American Convention.  Thus the aspects of this case related to the effectiveness of domestic remedies will be examined along with the merits.” 

35.          Additionally, the Special Rapporteurship deems it appropriate to make reference to the case of Ivcher Bronstein, which is before the Inter-American Court of Human Rights.  This case was submitted to the inter-American system when Baruch Ivcher Bronstein’s nationality was revoked.  He is an Israeli migrant worker, who acquired the Peruvian nationality by adoption or naturalization.  Mr. Ivcher Bronstein is the majority shareholder, director, and president of the Peruvian television station Channel 2 “Frecuencia Latina”.  The Peruvian legislation in force in 1997 established that the owners of companies who celebrated concession agreements for television stations should be Peruvian citizens.  When the petitioner was deprived of his Peruvian nationality he lost the editorial control of the television station.

36.          The Inter-American Commission of Human Rights prepared a Report on this case on November 2000.[13] The case was submitted to the Inter-American Court for the violation of the rights protected by the American Convention: among others, the right to a nationality (Article 20).  The relevant facts of the case can be summarized as follows: Mr. Ivcher Bronstein was not notified nor allowed to defend himself in the administrative process by which he was deprived of his Peruvian citizenship.  This process was one of various actions of the Peruvian authorities orchestrated to restrict the journalistic and economic activities of Mr. Ivcher Bronstein.  It is important to note that this is the first case in the history of the country in which the Peruvian nationality is revoked.

37.          The Inter-American Court of Human Rights decided the case.[14] The Court begins by considering the right to a nationality as a right of the human person “a natural state of the human being”, which is not only “the grounds of its political capacity, but also of its civil capacity”.[15] Even though the determination and regulation of nationality are competence of each State, international law imposes certain limitations derived from the duty to protect human rights.  The Court notes that the Peruvian Constitution guarantees the right to a nationality and establishes that it can only be lost by express resignation before the Peruvian authorities.  Both, the American Convention as well as the Peruvian law do not differentiate between the nationality acquired by birth and that acquired by naturalization or adoption.

38.          In this particular case, it has been established that Mr. Ivcher Bronstein acquired the Peruvian nationality on December 7, 1984.  He had to resign to his Israeli nationality in order to acquire the Peruvian nationality.  During the proceedings it was also demonstrated that in July 1997 the General Director of Migration and Naturalization withdrew the legal effects of the resolution by which Mr. Ivcher Bronstein had been granted the Peruvian nationality, arguing that he had not fulfilled the requirement of renouncing to his Israeli nationality.  The court found that the second resolution ignored Peruvian administrative regulations[16] and arbitrarily deprived Mr. Ivcher Bronstein of his nationality in violation of Article 20(1) and 20(3) of the American Convention.

39.          The Court also deemed appropriate to discuss the application of Article 8 of the American Convention related to the right to a fair trial and its application to administrative proceedings.  The Court reiterated that the minimum due process guarantees, established on Article 8(2), are also applicable to administrative proceedings. In particular, the right to be heard by a competent judge or tribunal is applicable to the cases in which a public official proclaims a resolution that affects individual rights.  In the present case the Court found that the General Director of Migration and Naturalization did not inform Mr. Ivcher Bronstein of the doubts he had regarding his naturalization procedure.  Additionally, the public official did not allow Mr. Ivcher Bronstein to obtain the presence of witnesses or submit evidence in order to clarify the charges against him. Additionally, the Court found that the migration authority that revoked the petitioner’s nationality was incompetent.  The nationality was granted by a “supreme resolution” from the Ministry of Foreign Relations, and therefore, according to Peruvian law, it cannot be annulled by a resolution of an official of inferior authority of hierarchy.

40.          The petitioner attempted various remedies in order to defend his rights. Article 8(1) of the American Convention establishes that tribunals must be competent, independent and impartial.  In the present case, it was found that some days before the proclamation of the resolution that revoked the Peruvian nationality to Mr. Ivcher Bronstein, the Executive Commission of the Judicial Branch changed the composition of the Constitutional and Social Court which is part of the Supreme Court of Justice and granted to the Constitutional and Social Court the power to create Higher Courts and Specialized Transitory Courts for Administrative Law.  In the Court’s opinion the creation of these courts simultaneous to the time when the facts of the case were taking place did not guarantee the right to a hearing before judges or tribunals “previously established by law”, as established by Article 8(1) of the American Convention.  For all of the above, the Court found that Article 8(1) and (2), the right to a fair trial, of the American Convention was violated.

41.          On the other hand, the Court found that the right to judicial protection of Article 25(1) of the American Convention was violated, as well as the right to property of Article 21(1) and 21(2) of the American Convention, and the freedom of expression of Article 13(1) and 13(2) of the American Convention.

42.          The Peruvian State accepted the recommendations of the Commission and by “ministerial resolution” of November 2000 declared null and without effect the resolution dictated by a director that had left without effect the nationality title of Mr. Ivcher Bronstein.  Nevertheless, the Court added that conditions should be established in order to recuperate the use and enjoyment of Mr. Ivcher Bronstein’s rights as majority shareholder of the Latin American Broadcasting Company, owner of Channel 2, according to the domestic proceedings.  Additionally, and taking in consideration the persecutions acts against the petitioner, the Court granted an additional compensation for moral damages in the amount of US$20,000. 

43.          By resolutions of November 21 and 23, 2000, the Court had granted provisional measures in favor of Mr. Baruch Ivcher Bronstein, his wife Neomy Even de Ivcher, and his daughters Dafna Ivcher Even, Michal Ivcher Even, Tal Ivcher Even y Hadaz Ivcher Even, as well as of Rosario Lam Torres, Julio Sotelo Casanova, José Arrieta Matos, Emilio Rodríguez Larraín and Fernando Viaña Villa, in order to ensure their physical, psychological and moral integrity and the right to a fair trial.  During 2001, the Court was informed that the Peruvian State had accepted the recommendations of the Inter-American Commission on Report Nº 94/98, November 16, 2000.  Specifically, Peru reinstated the Peruvian nationality to Mr. Ivcher, as well as his position as shareholder of the Latin American Broadcasting Company, which operates Channel 2 of the Peruvian television. Furthermore, the petitioner and his family returned to Peru and the arrest warrants against Mr. Ivcher Bronstein were revoked.  In light of the above, the Court determined that “the reasons of “extreme seriousness and urgency” and probable harm do not continue to exist, as required by Article 63(2) of the Convention, which motivated the Court to grant provisional measures in the foregoing case”.[17] There by, the Inter-American Court revoked the provisional measures by resolution of March 14, 2001. 

Right to a Fair Trial and to Judicial Protection

44.          The violations of the right to a fair trial and of the right to judicial protection in the deportation proceedings against Nicaraguan citizens in Costa Rica were denounced to the Inter-American Commission.  During the year 2001, the Commission declared the case 11.529 admissible.[18] In February 1995, the Commission received a petition against the Republic of Costa Rica, which was complemented with a brief received in August of the same year.  The communications allege the violation of the human rights of a group of 46 Nicaraguan citizens who were deported from Costa Rica on February 22, 1995.[19]  Briefly, the petitioners argue that their right to a fair trial, Article 8 of the American Convention, and their right to judicial protection, Article 25 of the American Convention, were violated.  In the case of two petitioners, it is also argued that their right to personal integrity was violated.

45.          The petitioners summarized the facts as follows. José Sánchez Guner Espinales and other 45 persons were arrested in Costa Rica and immediately deported to Nicaragua because they did not have migratory documents.  These persons affirm that they did not have the possibility of submitting a complaint or exhausting judicial remedies before the Costa Rican authorities, due to the limited time between their arrest and their deportation.  Petitioners add that, because they did not have documents to enter to Costa Rica, it was not possible for them to return and denounce the ill treatments that they argue they were victims of, or challenge their deportations in a court of law.  The petition adds that two of the persons who were part of this group were beaten by the Costa Rican authorities and separated from the rest of the group.  The whereabouts of these individuals is unknown.  The Head of Migration and Foreigners of Region IV in Nicaragua sent a written note of protest to the Head of Migration in Piedras Blancas, Costa Rica because he did not request approval from the Nicaraguan Consular Authorities for the entry of deported persons, the petitioners in this case, as established in the written agreements signed by the two States on this matter.

46.          The Costa Rican State argued that the petition was inadmissible because domestic remedies were not exhausted.  The petitioners could have challenged the resolution that ordered their deportation through a petition to revoke the decision or by appealing it.  The government indicates in its briefs, that those remedies are available for the persons whose entrance was authorized, as long as they did not submit false documents.  Additionally, the government states that the petitioners could have submitted a habeas corpus petition or denounce the mistreatments to the competent authorities.

47.          The Costa Rican government also argues that once the petitioners were deported they could have requested to enter the country through the legal mechanisms and denounce the facts of the petition.  On any case, the State denies that the two persons mentioned above were beaten.  The government indicates that these two persons were notified of their deportation orders and that they abandoned the Offices of the Migration Authorities by their own means.  Additionally, the State denies that this group of persons was denied the opportunity “to collect their wages and their belongings before they were deported”.

48.          From the information submitted by the parties, the Commission concluded that the petitioners were not allowed, nor was it possible for them to exhaust domestic remedies, which is an exception to the requirement of their exhaustion.  The Commission concluded that it is competent to hear the case and that the petition is admissible, according to Articles 46(2)(b) and 47 of the American Convention. 

Right to Liberty and Protection from Arbitrary Arrest

49.          Frequently, the migration authorities detain irregular or undocumented migrants.  In the year 2001, the Inter-American Commission heard a case on the detention of a particular group of migrants by the United States of America.[20] This case is about a petition submitted on April 1987 by various human rights organizations, on behalf of a group of Cuban nationals, which were part of the Mariel “Freedom Flotilla”.  This group of individuals traveled from Cuba to the United States on 1980.  The initial petition was submitted on behalf of 335 persons under the name Rafael Ferrer-Mazorra et al., which at that time were deprived of their liberty.

50.          It is important to mention that the Inter-American Commission carried out several in situ inspections to detention facilities where Cuban nationals, such as the victims of this case were detained, in order to collect evidence for the case.  The purpose of these in situ inspections was to evaluate the detention conditions of these persons and to receive information from public officials and from the persons who were detained.  In the Report, the Commission describes its observations.  The Commission found that due to the fact they are under administrative detention, the petitioners, who called themselves the Mariel Cubans, are “at a significant disadvantage in several respects compared to detainees who are serving criminal sentences”.[21] For example, the persons under administrative detention do not have the right to benefit from reform and rehabilitation programs, such as study and work.

51.          In the analysis of the arguments of the parties, the Commission responds to the allegations of the State that the American Declaration does not contemplate the detention of the Mariel Cubans.  The Commission determines that even though States have a wide margin of appreciation on migration issues, it does not imply that their powers are not subject to international human rights obligations.  The American Declaration must be interpreted and applied in such a way that the basic rights of human beings are protected, regardless of their nationality, in the States in which such instrument is a source of international obligations.  The Commission sustains its position on the Preamble of the American Declaration, where it is establishes that “The American States have on repeated occasions recognized that the essential rights of man are not derived from the fact that he is a national of a certain state, but are based upon attributes of his human personality;” Other articles of the Declaration reiterate this basic postulate, such as Articles II and XVII. Specifically, the member States of the OAS are obliged to guarantee the rights protected by the American Declaration “to all individuals falling within their authority and control, with the onus falling upon the State to prove the existence of a provision or permissible reservation explicitly limiting or excluding the application of some or all of the provisions of the instrument to a particular class of individuals, such as excludable aliens.” The Commission finds that the State did not demonstrate or prove that there is a disposition or reservation on this matter.  The petitioners and in general the Mariel Cubans are under the jurisdiction of the United States, not only are they physically present in the territory of the State since 1980, but they have also been the subject of proceedings and administrative and judicial measures.  The State is obliged to ensure and protect the rights of the petitioners as established on the American Declaration, including the right to liberty.

52.          The Commission continues its report indicating that States may not argue dispositions of their domestic legislation as grounds for not fulfilling their international obligations.  In this case and in spite of the fact that national courts assume that  “excludable aliens” never entered the territory of the United States for purposes of domestic legislation, States cannot argu this as justification for breaching the obligation to ensure the rights established in the American Declaration, even in the case of “excludable aliens” if they are under the jurisdiction of the United States.  The treatment that the State renders to the petitioners, including their detention, is not out of the scope of the Declaration, on the contrary, it must abide by such international instrument.  This last reasoning does not impede to consider the migration status of these persons when evaluating the way in which the State ensures and protects human rights.  On any case, the obligation to ensure and protect must at least guarantee “the fundamental protections” established in the American Declaration.  For the reasons stated above, the Commission is competent to hear this case.

53.          The petitioners indicate that they have exhausted all domestic remedies. They even pursued their case before the Supreme Court of the United States with a petition for a writ of certiorari, which was dismissed on October 14, 1986.  The petitioners argue that the writs of habeas corpus do not constitute an effective judicial remedy because the Federal Courts of the United States determined that “excludable aliens” do not have the right to the Fifth and Sixth Amendments of the Constitution.  Additionally, they argue that the review of the detention under the review plan does not constitute an effective remedy because it does not guarantee the elements of the right to a fair trial established by the American Declaration.  The State argues that domestic remedies have not been exhausted since petitioners have benefited and continue to benefit from the review plans.

54.          The Commission finds that domestic remedies have been exhausted in the United States.  As to the argument of the State in regards to the review plans, the Commission finds that precisely one of the arguments of the petitioners for the merits is that those procedures ignore the protection of fundamental rights established by Articles I, II, XVII, XVIII, XXV y XXVI of the American Declaration.  Therefore, the decision on this specific aspect is deferred to the merits of the case in a later section of the report.  The Commission finds that the petitioners met the other admissibility requirements. 

55.          In terms of the merits of the case, the Commission finds two fundamental problems.  The first one is to determine whether the detention of Mariel Cubans is subject to the American Declaration.  If so, the second issue is to determine whether the State ensured and protected the human rights of the petitioners.  The Commission found that the State is responsible for protecting and ensuring the petitioners' rights from the moment in which they were under the authority and control of the State in 1980.

56.          Before going to the second issue, the Commission deems it necessary to consider the way in which the petitioners were deprived of their liberty and released.  Due to the fact that the Commission did not receive specific information on each and every one of the 335 petitioners of the initial petition, it will make reference to the information submitted by the parties, even though it is at times general and may not necessarily be relevant for the case of the petitioners. 

57.          Between April and September of 1980, around 125,000 Cuban nationals arrived to the United States, as part of the Mariel “Freedom Flotilla”.  Even though most of these persons did not have documentation they were almost immediately released.  The remaining 8,000 Cubans were sent to resettlement camps for a more complex immigration screening.  The process finished in 1981 when about 6,200 Cubans were released.  The remaining 1,800 continued detained on the basis of their behavior, because it was suspected or they admitted having criminal background because of which they could not enter the United States according to immigration law, or because they suffered mental illnesses.  The petitioners belong to the 125,000 Cubans who arrived to the United States as part of the Mariel “Freedom Flotilla”.  When the case was submitted to the Commission, 335 petitioners continued to be deprived of their liberty since they had arrived to the country or had been detained again because they committed crimes or violated the terms of their parole.  Later, as the review plan was put into practice by the U.S. authorities many of the Mariel Cubans were released.  Also, some of those who were released violated the terms of their parole or committed crimes and were again deprived of their liberty.  For all of the above, the number of Mariel Cubans deprived of their liberty fluctuates.

58.          In 1988 the State estimated that between 100 and 150 of the Mariel Cubans continued detained since their arrival to the United States.  In 1999 the State indicated that all the petitioners had been released under parole at least once. Nevertheless, the Commission did not receive information as to what was the specific time for which each of the petitioners of this case had been detained.  From the partial information submitted by the State, the Commission finds that four persons were deprived of their liberty between 1988 and 1999, that is eleven years; other two persons had been detained since 1994 and other four were detained since 1996.  During the time in which they were deprived of their liberty, these persons either had access to the review procedure and were denied to them, or did not have access to it.

59.          In regards to the second legal issue on whether the State ensured and protected the human rights of the petitioners, the Commission develops the following analysis.  The right to liberty and the protection from arbitrary arrest can be found in Articles I and XXV of the Declaration.  All persons under the jurisdiction of a State have the right to liberty without any distinction.  This right is not absolute, States may deprive a person of her freedom on certain grounds.

60.          The international human rights bodies have established in their decisions that the reasons to deprive a person of her liberty are not always related to the investigation and sanction of crimes.  States detain persons with the purpose of controlling the entrance and residence of non-citizens in their territory,[22] because of their mental health,[23] and during the occupations of territory, civilians may be interned according to international humanitarian law.[24] On any case of deprivation of liberty, it can only be carried out under the guarantees and limitations established in Article XXV of the Declaration.  This article makes reference to the legality of detention, that is, that it was carried out according to the procedures established by preexisting norms and according to substantive and procedural rules of domestic law.  It is important to clarify that such norms must abide by the fundamental purpose of Article XXV: the protection against arbitrary arrest.  Therefore, “the domestic law itself should be fair, predictable, and therefore not arbitrary”.[25] 

61.          The Commission finds it possible to derive three requirements from Article XXV: a) preventive detention based on pubic safety must have a legal basis; b) detention can not be arbitrary; and c) there must be an expeditious judicial review mechanism, in circumstances of continuous detentions, that means the review of the decision at regular lapses of time.  The review proceedings for detention orders must fulfill procedural norms: impartial adjudicator, opportunity to submit evidence, right to a defense, and right to a counsel.[26]

62.          The petitioners are or were detained on the basis of their condition of “excludable aliens”, according to the U.S. immigration law.  In general, the persons who belong to this category are returned to their countries of origin.  In this case, it has not been possible because the Cuban government refuses to admit them.  Article XXV of the Declaration applies to the petitioners because they have been under administrative detention regarding their migratory status.  The Commission finds that the detention conditions, including the legislation that authorizes such detention do not fulfill the requirements of Articles I and XXV of the Declaration.  The domestic legislation does not protect the petitioners’ right to liberty; this constitutes a violation of Article I of the Declaration and therefore it impacts on the legislation that authorizes the detention and the mechanisms available to ascertain its legality. 

63.          In brief, the Immigration and Naturalization Act, legal basis for the detention of the petitioners, grants wide discretion to the Attorney General to detain “excludable aliens” while they are deported, to grant them parole within the Unites States, which does not modify their condition of “excludable”.  In other words, under the U.S. law an “excludable alien” does not have the right to freedom.  Simultaneously, the U.S. Courts have agreed with the interpretation of the law in regards to the fiction created in the case of “excludable aliens” that they did not enter the territory, which added to the administrative nature of their detention, results in the deprivation of liberty for these individuals, without any right to a fair trial and to an effective legal remedy.  All of the above, results in the ruling of U.S. courts that “excludable aliens” may de detained indefinitely, since the law does not establish a time limit on this matter.

64.          As a result, the Commission considers that the U.S. legislation that serves as basis for the detention of the petitioners is “in essence the antithesis of the protections prescribed in Articles I and XXV of the Declaration because it does not recognize any right to freedom on the part of the petitioners despite their physical presence within the territory of the State.”[27] This norm establishes the presumption of detention, instead of that of liberty, which is incompatible with the objective and purpose of the right to liberty (Article 1) and the right of protection from arbitrary arrest (Article XXV).

65.          The Commission thus concludes that the proceedings whereby the petitioners were detained and the legality of their detention is for several reasons incompatible with the requisites of Article XXV of the Declaration.  The proceedings are arbitrary because they do not define with sufficient detail the basis for depriving the petitioners from their freedom; they reverse the burden of proof for the detainee who has to justify why he/she has to be released; they have too wide a margin of discretion on the part of the authorities; and they do not offer guarantees for the revision of the detention, at least in reasonable intervals.  The Commission thus concludes that the law and the proceedings that determined that the petitioners were deprived of their liberty constitute a violation of Articles I and XXV of the Declaration. 

66.          Subsequently, the Commission proceeded to determine whether the petitioners could exercise their right to assess the legality of the detention in the U.S. courts.  One of the elements of Article XXV of the Declaration is the existence of judicial review.  Moreover, in the case that detention continues, the decision of depriving someone of his/her liberty should be periodically reviewed.  Such control is designed to curb the possibility that the detainee ends up at the mercy of the authority that sanctioned his/her detention.  The Commission found that the State did not fulfill its obligation under Article XXV because the tribunals accepted the validity of the judicial fiction of the non entrance of “excludable aliens” as a foundation for the detention of the petitioners and denied them the protection established in the Constitution to their right of not being arbitrarily deprived of their liberty.  Not only the judicial revisions, but also the review plans depart form the assumption that the petitioners do not have the right of not being detained.  As a result, the judicial review does not effectively guarantee the aforementioned rights.

67.          The Commission concludes that the petitioners were or are detained by the State in violation of the rights sanctioned by Articles I and XXV of the American Declaration.

68.          With regard to the right of equality (Article II), right to the recognition of the juridical personality (Article XVII) and the right to judicial protection (Article XVIII), the Commission develops the following analysis.  The concept of equality of the Declaration is related to the applicability of substantive rights and to the protection of them.  The right to equality includes the prerequisite of an objective and reasonable justification as a distinction basis.

69.          The applicability of the right to equality in the context of migration implies that, even though differences in the treatment of nationals and foreigners are admitted with respect to the entrance and permanence in the territory of any given country, the State has to demonstrate that distinctions of these nature are reasonable and proportionate with the objective they pursue.

70.          In this case, the Commission observes that the petitioners, just as other “excludable aliens”, have been subject to a different legal regime than other persons under the same jurisdiction and state control.  The principal justification proffered by the State for this distinction is, as the Commission understands it, the concern that if the State were forced to release all excludable aliens into its territory, it would "allow States to exile their unwanted-but-not-dangerous nationals knowing that they would have to be released into the communities of other States regardless of their legal status as excludable."[28]  The Commission considers that this differentiation is not reasonable and that the State did not present evidence that suggests that the judicial condition of “excludable aliens” had some effect in the migration policies of other States.  On the other hand, while the State has the prerogative of regulating the access of foreigners into its territory and thus may impose controls over the freedom and freedom of movement of people within its territory, the above mentioned restrictions cannot be arbitrary and should be subject to immediate as well as periodic revisions.  The State did not argue why the latter was not possible in the case of the petitioners, who as of this writing are deprived of their liberty and subject to an almost unlimited discretion on the part of the Executive Power.  Consequently, the Commission considers that the treatment of the petitioners as “excludable aliens” is disproportionate and therefore violates Article II of the Declaration.  For reasons already discussed, the Commission considers that the imprisonment of the petitioners infringes Articles XVII and XVII of the Declaration. 

71.          In short, the Commission determined that the United States had violated Articles I, II, XVII, XVII and XXV of the American Declaration in regards to the incarceration of the petitioners.

72.          The report was approved by the Commission and transmitted to the State, which had a three-month period to inform the Commission about the measures it would take to fulfill the forwarded recommendations.  The State requested a 90 days extension on the grounds of the complexity of the case, and insisted that a considerable part of the 335 petitioners were not imprisoned.  On the first of February 2001, the Commission granted the State an additional one-month period.  The Commission did not receive a response during that time.  The Commission received the esponse by the State on November 14, 2001.[29]

73.          On the other hand, following on site visits to the detentions facilities where the petitioners were held, the Commission expressed its concern regarding the detention conditions faced by the Cuban citizens.  The Commission observed that these people do not have the right to benefit from rehabilitation programs offered in their detention centers. In this regard, the Commission urges the State to provide the Mariel Cubans still imprisoned, or that could be detained in the future, minimal activities to foster personal development, just as those granted to inmates serving periods for penal offenses.

74.          The Commission made the following recommendations to the United States of America.

1. Convene reviews as soon as is practicable in respect to all of the petitioners who remain in the State’s custody, to ascertain the legality of their detentions in accordance with the applicable norms of the American Declaration, in particular Articles I, II, XVII, XVIII and XXV of the Declaration as informed by the Commission’s analysis in this report.

2. Review its laws, procedures and practices to ensure that all aliens who are detained under the authority and control of the State, including aliens who are considered “excludable” under the State’s immigration laws, are afforded full protection of all of the rights established in the American Declaration, including in particular Articles I, II, XVII, XVIII and XXV of the Declaration as informed by the Commission’s analysis in this report.

Evolution of the Case Law

75.          The Special Rapporteurship observes with optimism the fact that the case law on migrant workers and their families of the inter-American system of human rights has increased.  The Decisions of the Court and the Commission are useful to interpret the scope and content of the State’s obligation to ensure and protect the human rights of migrant workers and their families.

 

76.          The cases examined by the Inter-American system on 2001 are about different aspects of migratory procedures: entrance, permanence and expulsion of non-citizens.  It seems to indicate that States should make efforts to have and apply migration norms that guarantee the human rights of migrants.  That is why the section on due process guarantees in migration procedures of the Report of the Special Rapporteurship for 2000 is relevant.

77.          The following rules can be extracted from the cases discussed:

a.          The process to acquire a nationality must be subject to a procedure that guarantees the fundamental elements of due process.

b.          The deportation procedures for migrants, regardless of whether they are documented or not, must offer effective judicial remedies that allow the person that is going to be deported to request that his/her rights be protected.  If those remedies are not in place, the Commission finds that domestic remedies were exhausted or fall into the exception for their exhaustion for such cases to be submitted to the system.

c.          Finally, the right to freedom and the protection from arbitrary arrest must be guaranteed to all persons who are under the jurisdiction of the State.  The legal classifications of migrants cannot create legal fictions, such as the one of “excludable aliens” in order to justify the denial migrants their fundamental rights.  Migrants who are detained must have the possibility to request a court to review the decision to maintain them deprived of their liberty.

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