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

CHAPTER I       INTRODUCTION

CHAPTER II      MAIN ACTIVITIES OF THE RAPPORTEURSHIP IN 2002

CHAPTER III     GENERAL OVERVIEW OF STATE POLICY AND PRACTICE CONCERNING THE HUMAN RIGHTS OF MIGRANT WORKERS AND THEIR FAMILIES

CHAPTER IV     THE LABOR MARKET AND CONDITIONS OF DISCRIMINATION AGAINST MIGRANT WORKERS

CHAPTER V      ON-SITE VISIT TO COSTA RICA

CHAPTER VI     ON-SITE VISIT TO GUATEMALA

FOURTH 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 and 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. In creating the Special Rapporteurship, the IACHR also took into account the importance attributed to this area by member states, as is evidenced in the many resolutions dedicated to it by OAS General Assembly and Summits of Heads of State and Government. The IACHR explicitly limited the scope of action of the Rapporteurship to migrant workers and their families living 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.  Nonetheless, the IACHR recognizes that there are overarching principles that apply to all these categories, and that refugees, internally displaced persons, stateless persons and asylum seekers might at times become migrant workers and vice-versa.

2.       At its 106th regular session held in March 2000, the IACHR appointed Juan Méndez, an Argentine jurist, Commission member and President of the IACHR in 2002, 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 of collaborators.

3.       The IACHR decided to make the situation of migrant workers and their families a priority, given the serious human rights situation these people face.  Over the years, during on site visits the IACHR has obtained first-hand knowledge of the difficulties encountered by migrant workers. It has also received further information through complaints of human rights violations 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 abuse and systematic violation of their basic rights.

4.       As has been stated in the past, the Special Rapporteurship on Migrant Workers has several objectives.  The most important 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 in order to encourage states to take progressive measures in favor of this population; c) to prepare special reports and studies; 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.

5.       With respect to petitions, the IACHR is currently examining several cases of alleged violations of human rights of migrant workers and their families in the Americas. These include two cases against the Dominican Republic. One concerns the collective expulsion or threat of expulsion from the Dominican Republic of Haitian citizens and Dominicans of Haitian origin (Case 12.271). [1] The other is a case regarding the refusal to grant citizenship and access to education to two Dominican girls whose parents are of Haitian ancestry, even though the Dominican Republic recognizes the principle of jus soli (Case 12.189). [2] The IACHR is also examining two cases against Costa Rica alleging expulsion of Nicaraguan citizens from Costa Rican territory (Cases 11.529 [3] and 11.495 [4] ). Moreover, the Commission is currently examining the admissibility of two other cases, one against the United States regarding the death of migrants when crossing the border (Case 11.072), and the other against Argentina concerning the deportation of a Uruguayan citizen (Case 12.306).

6.       The IACHR's initiative to establish a Special Rapporteurship on Migrant Workers and their Families has been well received by the Heads of State and Government of the Americas.  In the Plans of Action of the Second and Third Summits of the Americas, states expressed their intention to do make greater efforts to improve the situation of migrant workers throughout the Americas. At the Third Summit of the Americas held in Quebec City (Canada) in 2001, the highest leaders of the Americas gave the OAS a special mandate to establish:

(A)n 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.       Regrettably, despite the interest expressed by states in various declarations, a more extensive development 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 truncated.  Thus far the activities carried out by the Rapporteurship owe their existence exclusively to a small contribution from the regular fund of the OAS, and the support from the Government of Mexico and the Ford Foundation.  While these contributions have allowed the team to continue its work, fresh resources are urgently needed. It should be pointed out that, as a reflection on of the growing interest shown by states and civil society, last year the Rapporteurship’s workload has significantly increased. The Rapporteurship regrets that the great interest expressed by many states and organizations has not been matched by a more concrete financial or logistical support.

8.       The IACHR has deemed desirable to prepare annual progress reports on various aspects of the human rights situation facing migrant workers. [5]   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. Moreover, migration is dynamic and cannot be explained once and for all. This report has been prepared in the spirit of unceasing observation of an ever-changing reality.  The report addresses a wide variety of matters pertaining to the situation of migrant workers in the Americas.  This year’s progress report includes sections on countries where migration is of special significance. Information was gathered during on-site visits. The countries were not chosen arbitrarily, but with the express purpose of calling attention to problems affecting migrant workers and their families that must be addressed. The Rapporteurship also wishes to draw attention to certain laudable practices that merit emulation. The practice of making on-site visits to specifically chosen countries was initiated in 2002 and represents but one way whereby the Rapporteurship is trying to promote and protect human rights. The practice deserves to be evaluated by the political bodies of the OAS.

9.       This 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 the Americas. The first section covers the main activities carried out by the Rapporteurship in 2002. The second section offers a brief panorama of the year’s milestones in the field of migration and human rights. The third section introduces the Inter-American Program for the Protection and Promotion of the Human Rights of Migrants developed by our team with the aid of the International Organization for Migration. The fourth section examines the labor rights of migrant workers and derives from of concepts expressed by the IACHR in regard to a request by the Government of Mexico to the Inter-American Court of Justice for an Advisory Opinion and on which the team at the Rapporteurship worked extensively. .Subsequently, we present some observations stemming from visits to Costa Rica in November 2001 and July 2002 and to Guatemala in March 2002, organized to gather information on various aspects of the situation of migrant workers and their families in those countries.

II.       MAIN ACTIVITIES OF THE RAPPORTEURSHIP IN 2002

10.     In accordance with the mandate given it by the IACHR, in 2002 the Rapporteurship performed a series of activities including: a) monitoring of the overall situation of migrant workers and their families in the Americas; b) organization of on-site visits to OAS member states; c) attendance to conference and fora on migration; d) development of institutional links with inter-governmental agencies and civil society organizations that work on behalf of migrant workers in the Americas; e) promotion of the Inter-American system of human rights protection; f) search for sources of funding for the Rapporteurship; and, g) support to IACHR officials charged with preparing studies related to migrant workers.

11.     As for monitoring the situation of migrant workers and their families, the Rapporteurship closely followed developments in the area of migration throughout the Americas.  It must be recalled that observation and monitoring activities are crucial to the work of the Rapporteurship because they lead to a more nuanced understanding of the complex situation of migrant workers and their families in the Americas.  

12.     Various specific follow-up and monitoring activities were carried out in 2002. As has become customary, the Rapporteurship closely tracked political debate and any changes in legislation and migratory control measures growing out of it. As was mentioned in last year’s report, the Rapporteurship is concerned about heightened controls on migration designed to enhance national security and combat terrorism. The Rapporteurship certainly does not question the right of states to boost efforts to assure the safety of their people or the timeliness of current efforts. This notwithstanding, the Rapporteurship is worried about the implementation of any measures that may erode the fundamental rights of migratory workers and their families. With this concern in mind, the Rapporteurship collaborated in the preparation of the IACHR Report on Terrorism and Human Rights. During 2002, the Rapporteurship also devoted time to monitoring the development of other pressing issues, inter alia, smuggling and trafficking of persons and the effects of political and economic crises on migration flows in the Americas.  With respect to the latter, the Rapporteurship has followed with particular interest the impact that the serious economic and political crises in Argentina and Uruguay have had on migration. The Rapporteurship has also checked on the economic and political crisis in Venezuela and how it has influenced migratory flows in the region. These matters are taken up in greater detail in Chapter 3 of this report. The Rapporteurship has also taken note of stricter controls on migration and the rising number of deportations in the countries of North America.

13.     In further fulfillment of its mandate, during 2002 the Rapporteurship made three on-site visits to obtain first hand information on the situation of migrant workers. Upon the invitation of the government of Guatemala, Juan Méndez and his team visited that country from March 19 to 24. In the month of July 2002, the Rapporteurship paid a visit to Costa Rica. A preliminary report had been drawn up by a team that visited Costa Rica from November 19 to 21, 2001. However, upon the express request of the government of Costa Rica, accompanied by his collaborators Juan Méndez visited the country from July 22 to 24, 2002. During this second visit, the team gathered further information for its report. Subsequently, Special Rapporteur Méndez visited Mexico from July 25 to August 3. This annual report presents written accounts of the first two visits. The report on Mexico will be made available in the first semester of 2003. It should be recalled that on-site visits are a basic part of the Rapporteurship’s mandate as they enable it to carry out its work as effectively as possible. Moreover, during such visits important contacts are made and valuable information on the situation of migrant workers and their families is collected. This enhances the Rapporteurship’s capacity to draft reports on specific situations and to make responsible, well-documented recommendations to states regarding the treatment of migrant workers and their families.

14.     With respect to participation in fora on migration, Juan  Méndez represented the Rapporteurship at the “Hemispheric Conference on International Migration: Human Rights and Trafficking of Persons in the Americas,” held in Santiago de Chile from November 20 to 22, 2002. The conference was jointly sponsored by the International Organization for Migration (IOM) and the Economic Commission for Latin America and the Caribbean (ECLAC), pursuant to UN General Assembly Resolution 56/203 and ECLAC Resolutions 590 (XXIX) and 592 (XXIX). The Rapporteurship also devoted close attention to the meetings and debates of the Regional Conference on Migration (RCM) and the South American Conference on Migration. [6] In September, Juan Méndez and two members of his team participated in a round table sponsored by the University of Chicago for activists working in the field of human rights and migration. This event brought together academics, activists and representatives of inter-governmental and non-governmental organizations dedicated to human rights and migration from Mexico, Guatemala, El Salvador and the United States.

15.     As for the development of institutional links with inter-governmental agencies and civil society groups that work on behalf of migrant workers and their families, the Rapporteur and his team held several meetings in 2001. Additionally, the Rapporteurship kept close contact with diverse organizations studying and/or monitoring migration flows 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 of migrant workers and their families and respect for their fundamental rights.  The Rapporteurship has an ongoing contact with the team of the UN Special Rapporteur for the Human Rights of Migrants, Gabriela Rodriguez. Members of Ms. Rodriguez’s team were part of a delegation of the UN Office of the High Commissioner for Human Rights that visited the IACHR office. These UN representatives met with Claudia Pulido, a Commission lawyer who works with the Rapporteurship. In addition, Juan Méndez met with Special Rapporteur Rodríguez during his visit to Costa Rica as well as at the aforementioned the Hemispheric Migration Conference in Santiago. It should be stressed that the development of institutional links with inter-governmental and civil society organizations is very important because it helps the Rapporteurship to attain a better understanding of migration-related issues in the Americas.

16.     In regard to another part of its mandate, the Rapporteurship sent a request to the IACHR asking for precautionary measures to be instituted with the government of Guatemala for the protection of Egón Hidalgo Salvador y Salvador, an employee of the Migrants House of Tecún Umán, a shelter for migrants run by the Scalabrinian Order. Mr. Hidalgo Salvador y Salvador received death threats from unidentified parties due to the work he has done to promote the human rights of migrant workers.

17.     During the course of 2002, members of the Rapporteurship’s team worked closely with IOM representatives and a group of specialized consultants on the drafting of an Inter-American Program for the Protection and Promotion of the Human Rights of Migrants. This program would be established within the framework of the OAS, derived as it is from mandates established by the Summits of Heads of State and Government of the Americas. This year’s report contains a version of the program to be presented to the next OAS General Assembly in Santiago (Chile).  It should be recalled that in 2000 the IACHR and the IOM signed an institutional cooperation agreement to enable the two institutions to jointly implement activities intended to promote observance of the human rights of migrant workers and their families in the Americas.

18.     To further its efforts, the Rapporteurship has continued to cultivate ties with civil society organizations and academic institutions. Such contacts are crucial to disseminate the work of the Rapporteurship. In July, Juan Méndez participated in a course on human rights organized by the Inter-American Institute of Human Rights. In the month of November, expert consultant Helena Olea represented the Rapporteurship at the Annual Course on Civil Society sponsored by the Inter-American Institute of Human Rights in San José (Costa Rica). During the course, Ms. Olea talked about the work of the Rapporteurship and the challenges facing it. To further promote the work of the Rapporteurship in December 2002, two collaborators of Special Rapporteur Méndez met in Washington with members of the International Human Rights Law Group. Contact had also been ongoing with various civil society organizations and networks concerned with migrants, such as the Regional Network of Civil Organizations for Migrations (RNCOM). The Rapporteurship strives to maintain a working relationship with NGO’s and academic bodies in order to attain access to information on the general situation of migrant workers and on specific cases of special interest.

19.     Similarly, as part of its efforts to study migration law in the region, the Rapporteurship continued to work on a joint study on comparative migration law with the Law School of Villanova University.  The Rapporteurship hopes to make significant progress on this important project in the coming year. It is important to stress that cooperation with academic centers significantly strengthens the work of the Rapporteurship.

20.             In addition, the Rapporteur and his team renewed efforts to raise funds for the continuation and consolidation of the office’s activities, exploring diverse sources of financing. The Rapporteurship will request that the Ford Foundation continue its support. As has been mentioned, last year the Rapporteurship once again received a grant from the Government of Mexico.

21.             Lastly, the Rapporteurship takes note of case 12.071, which was declared admissible by the IACHR during the year 2002. The petition was submitted on behalf of 120 Cuban and 8 Haitian citizens who were detained in the Commonwealth of the Bahamas. On August 14, 1998, the IACHR dictated precautionary measures requesting the State to suspend the deportations of these people until the IACHR had the opportunity to review the facts. The measures were reiterated on September 11 of that same year. The petitioners and the State informed the IACHR that all the Cuban citizens who were detained when the precautionary measures were originally issued had been repatriated to their home country. The IACHR declared the petition admissible and determined that in the merits decision it will make a statement concerning the exhaustion of domestic remedies, since this matter is directly linked to the merits of the petition. The Rapporteurhsip considers that this case falls within its mandate because it has insisted that the non-refoulement duty, established on article 33 of the Convention on the Statute of Refugees, is one of the limits or prohibitions of international law that need to be taken into account in immigration proceedings so as to guarantee the human rights of the individuals who are subject to them.

III.      GENERAL OVERVIEW OF STATE POLICY AND PRACTICE CONCERNING THE HUMAN RIGHTS OF MIGRANT WORKERS AND THEIR FAMILIES

22.             One of the main functions of the Special Rapporteurship consists of the observation and monitoring of policies and practices affecting the human rights of migrant workers and their families. These activities aim at contributing to improve the understanding of problems faced by migrant workers and their families in the different states of the Americas. They also seek to help the Rapporteurship to plan specific promotional activities for relevant personnel, organizations, and migrants themselves in places were these activities are deemed relevant.

23.             This section of the annual report presents a brief overview of policies and practices that, in the opinion of the Rapporteurship, had impact on the human rights of migrant workers and their families in the Americas. The period covered corresponds to 2002. In some cases, the section alludes to information of different or prior periods that was divulgated in 2002.

International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families

24.             On December 10, 2002, East Timor became the twentieth country to ratify the International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families. The Convention thus will become effective on 1 April 2003. The countries in the Americas that have ratified this convention include Belize, Bolivia, Colombia, Mexico and Uruguay.

Request for an Advisory Opinion

25.             Mexico requested the Inter American Court on Human Rights to issue an Advisory Opinion concerning the right to non-discrimination of migrants. The Court accepted the request, which is now under review.

Cases before the Inter American Commission on Human Rights

26.             The Foreign Ministry of the Dominican Republic signed a Memorandum of Understanding, whereby it committed itself to creating a committee to oversee that the provisional measures dictated by the Inter American Court on Human Rights in favor of Haitian and Dominican families of Haitian descent living in the Dominican Republic were complied with.

Migration Flows

27.             The United Nations Population Division indicated that, according to a recent study, 175 million people resided for more than twelve months in a country different to that of their nationality or place of birth in 2000.

28.             The Economic Commission for Latin America and the Caribbean (ECLAC) calculated that at least 20 million of the migrants in the world were Latin American. According to ECLAC’s estimates, seventy percent of Latin American and Caribbean migrants live in the United States.

29.             Immigration of Argentine nationals to diverse destinations increased as a result of the economic crises affecting the country. Calculations indicate that between 60-80 thousands Argentines have emigrated last year, most to Italy and Spain.

30.             It is calculated that 120.000 undocumented Peruvians live in Argentina.

31.             Likewise, it is estimated that 12.900 Peruvians live in Chile without proper authorization.

32.             Immigration of Colombian nationals has increased. The International Organization of Migration (OIM) indicates that between 1997 and August 2002, 1.2 million Colombians emigrated, mostly to Panama, Venezuela and Ecuador. Colombia’s population reaches 37 million people.

33.             Last year the number of Venezuelan immigrants peaked. Spain, Portugal and Italy were among the most important destination for Venezuelan immigrants.

34.             In the last three years, approximately 300 thousand Ecuadorians have emigrated. Ecuador’s has 13 million inhabitants.

35.             In 2001, 250.346 people immigrated to Canada. Up to 61% were migrant workers and their families while 27% were refugees. The rest were people who immigrated to Canada as part of family re-unification schemes. Data showed that in 2001, 17% of Canada’s population was foreign born.

36.             Studies indicated that up to 1.5 million Salvadorans leave outside the country.

Remittances

37.             The United Nations Population Division indicated that remittances of nationals of Jamaica, El Salvador and Nicaragua living abroad became more than 10% of the Gross Domestic Product (GDP) of these countries.

38.             Remittances of Mexican workers in the United States reached U$ 9.2 billion dollars in 2002. Remittances thus have become the third source of foreign currency behind oil and tourism.

39.             In 2001, remittances of Ecuadorian migrant workers leaving outside the country reached U$ 1.2 billion dollars.

Measures to regularize migration status

40.             The four members of the South American Common Market (Mercosur), Argentina, Brazil, Paraguay and Uruguay, in addition to Chile and Bolivia, signed an accord that allows citizens of these countries to migrate and work legally in all these countries. The requirements for migrant workers to meet the conditions of the accord include:  have a passport or other personal information document, birth and civil status documents, certification that the person does not have a criminal record, and a sanitary certificate. The accord needs to be ratified by the legislative bodies of the aforementioned countries in accordance to domestic law.

41.             Mexico and Guatemala signed an accord to regularize the migration status of approximately 80 thousand Guatemalan farm workers residing in Mexico.

42.             The United States government extended the Temporary Protected Status (TPS) to nationals from Honduras and Nicaragua affected by Hurricane Mitch (1998) until July 2003.

43.             The United States government extended the Temporary Protected Status (TPS) to nationals from El Salvador affected by earthquakes (2000) until September 2003.

Guidance, Smuggling and Trafficking in Persons

44.             In May 2002, the United States government issued the first T visa to a victim of human trafficking. This visa, approved under the 2000 Statute for the Protection of Victims of Human Trafficking, allows persons to stay in the United States when, upon their return to their country of origin, they have to face a particularly difficult situation. The first T visa was extended to a four-year old Thai child who entered the country with false documents and accompanied of two adults who were not relatives of his.  The Thai minor is HIV positive.

45.             In August 2002, migratory authorities in the United States, Guatemala, El Salvador and Honduras captured several persons who were part of a ring of human traffickers sending minors from El Salvador and Guatemala to the United States. Minors attempted to enter the United States illegally to be reunited with their relatives.

Deportation

46.             In December 2000, Guatemala suspended the reception of Central American citizens deported from Mexico. Guatemala took this decision as a reaction to the suspension of economic support to undertake the program for Safe and Orderly Repatriation of Central American migrants. Under this program, Guatemala allowed through its territory the passage of buses carrying deported Salvadorans, Nicaraguans and Hondurans from Mexico who were en route to their countries of origin. Today Guatemala only authorizes the entrance to its territory of Central Americans in possession of CA-4 documents. Derived from an intergovernmental agreement, the CA-4 ID grants people from Honduras, Nicaragua, Guatemala, and El Salvador free circulation in these four countries.

The Right to Social Security

47.             The United States Social Security Administration sent 750 thousand letters to employers across the country informing them that they had made contributions to the Social Security Fund in the name of workers who had irregular social security numbers. Employers, the authorities determined, had thirty days to fix inconsistencies in the social security numbers of their workers; otherwise, they would be penalized. It is estimated that a sizable percentage of the inconsistent social security numbers corresponded to undocumented migrant workers who obtain fake or duplicate existing social security numbers.

48.             The Mexican and Guatemalan governments subscribed an agreement to help Guatemalan migrant workers obtain the assistance of the Mexican Institute of Social Security.

The Right to Asylum and Non-Refoulement

49.             Canada and the United States signed an agreement concerning asylum procedures. According to a so-called “safe third country of asylum” accord, asylum seekers ought to claim asylum in their first country of entry and not carry their claim into a second country. In other words, people soliciting asylum in Canada entering from the United States will be required to claim asylum in the United States (and vice-versa).

Labor Rights

50.             The US Supreme Court issued its ruling on the Hoffman Plastic Compounds Inc. v. National Labor Relations Board case. The Court determined that undocumented or irregular workers do not have the right to claim backpay when it is determined that they were laid off, for participating in activities related to union-organizing, in violation of norms.

Right to a Public Hearing

51.             In September 2001, the Immigration and Naturalization Service ordered that the hearings for 600 so called “special cases” be carried out on closed doors. Additionally, the US government refused to release the names of the persons in custody.

52.             In August 2002, a US Federal Judge ordered authorities to release the names of the people it had in custody and that the hearings on their cases were public. The decision was confirmed by the Sixth District US Appeals Court, which rejected the arguments that the hearing in migratory procedures are of an administrative nature and thus different to judicial procedures.

Right to Personal Freedom

53.             In the United States, approximately 1,200 people were apprehended as part of investigations related to the attacks of September 11, 2001, including 752 persons charged with violations of immigration rules. Until August 2002, 81 of them remained in custody. The rest was either deported or released without charges. None of the people in custody were formally charged with any offense.

Consular Protection

54.             As part of consular protection activities, Mexican consulates in the United States issued consular registrations –identification cards- to its citizens. Mexico calculated that it would issue approximately 850 thousand consular registration cards during 2002. During the first semester, the Mexican government issued 448 thousand consular registration cards. Mexican Consulates across the United States have carried out campaigns in order to convince financial institutions, transportation companies and local governments to accept these documents. Acceptance of this form of identification would help Mexican migrant workers and their families to open bank accounts, board planes and other transportation vehicles and identify themselves to the police and authorities.         

Protection of Migrants in their Country of Origin

55.             In August 2002, the Mexican Government created the National Council of Mexican Communities Abroad. The new council was created to channel the interests from and organize the participation of Mexican migrants in different topics.

Program for the Assisting the Return of Migrants

56.             OIM and the governments of Cuba and Haiti signed an accord to assist the voluntary return of irregular Haitian migrants who arrived to Cuba and aspire to return to Haiti. Haitian migrants often end up arriving to Cuba’s shores en route to the United States. In 2002, 188 persons benefited of this initiative. In 2001, in turn, OIM assisted 532 Haitians of a total of 840 that arrived in Cuba after a failed attempt to reach the US’s shores.

Conferences and other Discussion Forums

57.             The Hemispheric Conference on International Migration was celebrated in Santiago de Chile on November 20-22, 2002. The conference touched upon issues related to migration and human trafficking. Concurrently, NGOs who work to promote respect for migrants’ human rights and who comprise the Hemispheric Forum on International Migration also celebrated a meeting in Santiago.

58.             The seventh Regional Conference on Migration (RCM) met in Antigua, Guatemala, in May 2002. This intergovernmental forum discusses policies and practices concerning migration and is composed of North, Central American and Caribbean countries.

59.             The Regional Network of Civil Organizations for Migration (ROCOM) met simultaneously to the (RCM).

60.             The Second South American Conference on Migration met in Ecuador in August 2002.

IV.      THE LABOR MARKET AND CONDITIONS OF DISCRIMINATION AGAINST MIGRANT WORKERS

61.             This chapter of the annual report of the Rapporteurship for Migrant Workers consists of an edited and abridged version of the report submitted to the Inter-American Court of Human Rights (hereafter the “Court”) by the IACHR. This report is connected with the request for Advisory Opinion OC-18 requested by the State of Mexico to clarify the scope of the right to equality and the principle of non-discrimination (Article II of the American Declaration of the Rights and Duties of Man and 1(1) and 24 of the American Convention on Human Rights) and how they apply to the labor rights of migrant workers in an irregular situation in the state where they live and work. The report of the IACHR was prepared by a team of experts headed by Juan E. Méndez Special Rapporteur, on Migrant Workers and their Families, Ariel Dulitzky, attorney of the IACHR Secretariat, and Andreas Feldmann and Helena Olea, members of the Rapporteurship’s team. Some students in the Master’s Program on Human Rights at Notre Dame University Law School also took part in the study. [7]

62.             This chapter is divided into the following parts. The first section briefly analyzes the situations and obstacles that migrant workers contend with in the area of labor. It then examines the principle of nondiscrimination and the duties of states as regards human rights and how that extends to the area of labor. The fourth part discusses permissible limitations and restrictions on human rights and how such restrictions affect migrant workers where labor is concerned.  Based on the analysis contained in the sections leading up to it, the fifth, and last, section identifies the fundamental labor rights in respect of which, in the opinion of the IACHR, it is not permissible to discriminate against migrant workers regardless of their immigration status.

A.             Labor rights and how they relate to the situation of migrant workers

63.             Labor migration is a worldwide phenomenon that has a huge impact on a significant number of countries. According to the calculations of the International Organization for Migration (IOM) around 150-175 million people, something like three percent of the world’s population, reside either temporarily or permanently in another country. ^[8] Many of these people emigrate to escape situations of violence; however, most of these migrants leave their country fleeing poverty and lack of opportunity in search of a better future. The vast majority of these people migrate in search of jobs. A very small number leaves to study or to be reunited with relatives. According to the International Labour Organization (ILO), between 1965 and 1990 the number of migrants increased by almost 50 percent from 75 to 120 million. Of that number, almost three-quarters (70 to 80 million) were people who emigrated in search of work. A high though indeterminate number were undocumented people, in other words, people who migrate in an irregular manner without proper authority from the state they enter to. [9]  

64.             Better and more employment opportunities and disparity in living standards, salaries and social benefits (access to education, health services and pensions) between developed and developing countries have historically fueled migration.  In this regard, even though the differences between rich and poor countries have always existed, in the past two decades the disparity has tended to widen. One aspect that best illustrates this trend concerns recent wage developments: broadly speaking, whereas in developed countries salary levels have tended to rise, in developing countries they have rather stagnated or visibly declined. As a result, the difference between the hourly wage in a developing country and a developed country (and between underdeveloped countries with different rates of development) has grown exponentially. For example, in 1996, a Mexican laborer could earn on average nine times more working in the United States than in his country of origin. ^[10] At the same time, economic hardship in several developing countries has led to a shortage of employment opportunities and a sharp slump in people’s purchasing power. Financial crises in many countries has also led to substantial state service cuts (e.g., health, education, housing, pensions), which has contributed to make people even poorer.

65.             Against this backdrop, many people in developing countries have opted to emigrate.  For many emigration represents a once-in-a-lifetime opportunity to improve their living conditions and economic situation, and to provide more development opportunities for their families. The families of migrant workers stand to benefit in two ways: those that migrate obtain certain benefits in receiving countries, such as education, health and better living conditions. Those who remain in their countries of origin, on the other hand, benefit from remittances –money sent by nationals who reside abroad to their country of origin– from their relatives. This money is generally used to pay for essential goods, health care, food, housing, and consumer goods; occasionally they are also transformed into capital goods (tools, investment). ^[11]

66.             The enormous benefits that migrant workers and their families can obtain by finding a job in another country, coupled with the desperation caused by poverty and lack of opportunities in their countries of origin very often leads them to accept very difficult working conditions. It should be mentioned that migrant workers, in particular those who are largely unskilled are prepared to take jobs that nationals of the receiving country do not want because the conditions are too difficult, dangerous or strenuous. ^[12] Migrant workers and their families represent an especially vulnerable social sector that is usually subjected to abuse and systematic violations of their labor rights. These people are often unfamiliar with the law and the language in the receiving country and on a number of occasions have to face open hostility from the people and even the authorities of the receiving country. The situation is particularly serious in the case of undocumented persons whose immigration status exposes them to even more abuse. Owing to the particular circumstances of migrant workers, these people are described as being in a situation of structural vulnerability.

67.             Unscrupulous employers in countries of origin very often take advantage of the vulnerability of migrant workers. For employers, the existence of workers prepared to accept the above-described conditions presents them with the opportunity to cut costs and, therefore, to make their products or services more competitive in the marketplace. Aware of the desperation of these people and the unprotected state in which they normally live, particularly from a legal standpoint, employers very frequently offer employment in conditions that fall along way short of safety and sanitation standards and pay very low salaries, normally less than the legal minimum wage. Furthermore, they deny them labor benefits, such as health or industrial accident insurance and restrict their freedom of association. Situations of exploitation in which the employer forces migrant workers to work exhausting hours without rest, or in which they simply do not pay them for their work, are also common. Accusations of physical mistreatment and intimidation –such as threatening to report undocumented persons to the authorities– to discourage complaints of abuse are also reported. ^[13]  

68.             Some migrants are subjected to even worse conditions than the ones described above. These people are victims of the crime of human trafficking. This crime is committed when a person or an organization facilitates, by means of coercion or deceit, the irregular entry of another person into a state of which they are not a national, and once there forces them to engage in an economic activity in payment for having helped them to travel to the country of destination. Victims of trafficking are usually obliged to perform work in particularly difficult conditions and are subjected to a series of abuses. Some of these persons are even made to endure slave-like conditions, as through intimidation or physical coercion there liberty is restricted and they are prevented from leaving their place of work or residence; furthermore they are not paid for their labor. Trafficking victims may also suffer physical and sexual assault. Human trafficking is a criminal activity carried out by organizations engaged in illicit business ventures, in particular sexual exploitation. Women and children are the chief victims of this practice.

69.             The vulnerability of migrant workers is further accentuated as a result of certain discriminatory practices on the part of the authorities in receiving countries. The people and authorities of many such countries adopt hostile attitudes to migrant workers and their families derived from prejudice-based national conceptions designed to exclude them. ^[14]   As if to reflect such discriminatory practices, antagonism, and prejudice in many receiving countries abuses committed in the work place –and elsewhere– against migrant workers are not properly investigated or punished by the competent authorities.  By the same token, in many receiving countries laws are passed and practices maintained that are harmful to foreign workers, including openly discriminatory rules designed to prevent their insertion in the labor market. ^[15]   In this connection, in some cases discriminatory policies and practices fomented by some states against migrant workers can have a negative effect by depressing the labor market. This situation affects the employment possibilities of all workers irrespective of their immigration status or whether they happen to be nationals or foreigners, since it creates a surplus of labor. Some unscrupulous employers take advantage of the existence of a large numbers of jobless people willing to work clandestinely by restricting wages and benefits for all their workers.

B.       The principle of non-discrimination and the duties of states

70.             Given the plight of migrant workers, the Rapporteurship believes it pertinent to conduct an analysis of the labor standards that apply to these persons, in other words, examine the labor rights of migrant workers. On this point, the Rapporteurship considers that any evaluation of the labor conditions of migrant workers should be founded on an in-depth analysis of the connection between the observance of fundamental rights in the area of labor and the principle of non-discrimination and the right to equal protection of the law. The section that follows contains a number of considerations on these points.

71.             Non-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitute a founding, basic, general and fundamental principle relating to the international protection of human rights. ^[16] Thus, the Preamble of the American Declaration of the Rights and Duties of Man says, “All men are born free and equal, in dignity and in rights “. Article II of the Declaration adds, “All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor “ ^[17] . In that same connection, international treaties on human rights contain these basic principles. Thus, Article 2, paragraph 1, of the International Covenant on Civil and Political Rights obligates each State party to respect and ensure to all persons within its territory and subject to its jurisdiction the rights recognized in the Covenant without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. [18]

72.             The fundamental principles of international law of human rights of equality and non-discrimination are so crucial that all references to human rights contained in the Charter of the United Nations are tied to the principle of non-discrimination.  Article 1 of the Charter provides that one of the purposes of the United Nations is

To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion. [19]

73.    Furthermore, Article 55 of the Charter refers specifically to human rights and says,

With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:

c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

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