74.             In the context of the Charter of the United Nations the concept of universal respect for human rights is inalienably linked to the principle of non-discrimination. That is, inclusion by opposition to exclusion is a distinctive feature of the international system of human rights founded in the framework of the United Nations. ^[20]   Furthermore, the Charter of the United Nations requires states to ensure the effectiveness of rights and freedoms. ^[21]

75.             In keeping with the inalienability of respect for human rights and non-discrimination, in the Charter of the OAS, the American States proclaim the fundamental rights of the individual without distinction as to race, nationality, creed, or sex. ^[22] In reaffirmation of this principle, the Preamble of the recently adopted Inter-American Democratic Charter says that the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights contain the values and principles of liberty, equality, and social justice that are intrinsic to democracy. In particular, Article 9 of the Democratic Charter states that:

The elimination of all forms of discrimination, especially gender, ethnic and race discrimination, as well as diverse forms of intolerance, the promotion and protection of human rights of indigenous peoples and migrants, and respect for ethnic, cultural and religious diversity in the Americas contribute to strengthening democracy and citizen participation.

76.             Ultimately, the international system of human rights has been created and functions on the basic premise of equality among all human beings, by virtue of which all discrimination is precluded from that system. In an Advisory Opinion, the Inter-American Court noted that

[The] notion of equality springs directly from the oneness of the human family and is linked to the essential dignity of the individual. That principle cannot be reconciled with the notion that a given group has the right to privileged treatment because of its perceived superiority. It is equally irreconcilable with that notion to characterize a group as inferior and treat it with hostility or otherwise subject it to discrimination in the enjoyment of rights which are accorded to others not so classified. It is impermissible to subject human beings to differences in treatment that are inconsistent with their unique and congenerous character. [23]

77.             The international jurisprudence and practice on which the Inter-American Court has relied on different occasions have elevated this principle of non-discrimination to special status in international law. Thus, the International Court of Justice found that prohibition of racial discrimination constituted an obligation erga omnes ^[24] . The same Court was to say a year later that the enforcement of “distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter” of the United Nations. ^[25]

78.             From that perspective, there is consensus in the international community that prohibition of racial discrimination, ^[26] as well as of directly associated practices, such as slavery, genocide or apartheid, are obligations erga omnes. ^[27] Furthermore, self-determination has been recognized as a right erga omnes. ^[28] The fact that prohibition of racial discrimination and of related practices are jus cogens means that, given their mandatory nature, “these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law” ^[29] .

79.             Except on the grounds of race, hitherto consensus has been lacking in the international community to consider prohibition of discrimination for other reasons; however, that does not undermine the fundamental and basic importance of the above rules in the body of international law as a whole. Prohibition of discrimination has not undergone the same development in terms of promotion of laws. However, we can say that there is a clear prohibition of discrimination on the basis of sex and religion, because they are contained in the Charter of the United Nations [30] and of the OAS [31] ; this, therefore, may be regarded as representative of the consensus of the international community regarding their fundamental importance. Further, prohibition of discrimination on the basis of language contained in the Charter of the United Nations [32] and of nationality in the Charter of the OAS [33] , bear the same importance.

80.             The principle of non-discrimination is so basic that, as described below, even when human rights treaties empower states parties to adopt in exceptional situations provisions that suspend certain rights, it is required, inter alia, that such provisions not involve discrimination on the ground of race, color, sex, language, religion, or social origin. ^[34]

81.             Because of their basic and general nature, the principles of non-discrimination, of equality before the law, and of equal protection of the law, have led to the adoption of specific treaties in this area, such as the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, the International Labour Organization (ILO) conventions on discrimination in employment and occupation and on equal pay, and the UNESCO Convention against Discrimination in Education. At the inter-American level there are the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women and the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities. In addition, significant in the history of the codification of human rights was the early adoption of instruments designed to eliminate the most serious violations of the principles of equality and non-discrimination, such as the 1949 Convention on the Prevention and Punishment of the Crime of Genocide, the 1952 Convention on the Political Rights of Women or the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, all of which predate the general human rights treaties.

82.             By the same token, and to underscore the importance of equality and non-discrimination, human rights treaties expressly provide for the principle of either non-discrimination or equality in articles relating to given categories of human rights. ^[35] For example, Article 8(1) of the American Convention says that every person has the right to a hearing, with due guarantees by a competent tribunal for the determination of his/her rights and obligations of, among others, a labor nature. Clause 2 of the same Article adds that during the proceedings, every person is entitled, with full equality, to a range of minimum guarantees. The Inter-American Court has ruled that those minimum guarantees apply to every type of proceeding including those involving labor matters. ^[36] In this sense, Article 14 of the International Covenant on Civil and Political Rights says, “All persons shall be equal before the courts and tribunals “. ^[37]

83.             In the opinion of this Court, for “the due process of law” a defendant must be able to exercise his rights and defend his interests effectively and in full procedural equality with other defendants. ^[38] Given the importance of equality as an element of due process, the Court has said,

To accomplish its objectives, the judicial process must recognize and correct any real disadvantages that those brought before the bar might have, thus observing the principle of equality before the law and the courts and the corollary principle prohibiting discrimination. The presence of real disadvantages necessitates countervailing measures that help to reduce or eliminate the obstacles and deficiencies that impair or diminish an effective defense of one’s interests. Absent those countervailing measures, widely recognized in various stages of the proceeding, one could hardly say that those who have the disadvantages enjoy a true opportunity for justice and the benefit of the due process of law equal to those who do not have those disadvantages. [39]

84.             The Court has clarified more specifically that Article 24 de la American Convention recognizes the principle of equality before the law. Thus, the general prohibition against discrimination contained in Article 1(1) “extends to the domestic law of the States Parties, permitting the conclusion that in these provisions the States Parties, by acceding to the Convention, have undertaken to maintain their laws free of discriminatory regulations “. ^[40]

85.             The Court has said that the meaning of the term discrimination employed by Article 24 must, then, be interpreted by reference to the list enumerated in Article 1(1). If a person seeking the protection of the law in order to assert rights which the Convention guarantees finds that he/she is unable to do so for any of the reasons mentioned in Article 1(1), that person is being discriminated against and, hence, is not receiving equal protection before the law, in violation of Articles 24 and 1(1). ^[41]

86.             It is essential to mention that under Article 24 of the Convention “protection of the law consists, fundamentally, of the remedies the law provides for the protection of the rights guaranteed by the Convention “ [42] . The Court has interpreted those remedies as being the ones arising from Articles 8 and 25 of the Convention. This Court has repeated that it is not sufficient that such recourses exist formally, but that they must be effective; [43] that is, they must give results or responses to the violations of rights established in the Convention. In other words, every person has the right to a simple and prompt recourse or to any effective recourse before competent judges or tribunals that protects him/her against the violation of his fundamental rights. [44] This guarantee “constitutes one of the basic pillars, not only of the American Convention, but also of the rule of law in a democratic society according to the Convention”. [45] Moreover, as the Court has also indicated, those remedies which prove illusory, due to the general situation of the country or even the particular circumstances of any given case, cannot be considered effective [46] .

87.             Given that neither the American Convention nor the Charter of the OAS provide a definition of the term discrimination, one may rely on the definitions contained in the International Convention on the Elimination of All Forms of Racial Discrimination and in the Convention on the Elimination of All Forms of Discrimination against Women as a basis to argue that discrimination is any distinction, exclusion, restriction or preference which is based on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. ^[47]

88.             From the above definition it follows that there is no discrimination if the difference in treatment has a legitimate purpose when the classifications selected are based on substantial factual differences and there exists a reasonable relationship of proportionality between these differences and the aims of the legal rule under review ^[48] . The Court has found, as have other international agencies and tribunals, ^[49] that “not all differences in treatment are in themselves offensive to human dignity” ^[50] . In this regard, the Court noted that a difference in treatment ‘is only discriminatory when it “has no objective and reasonable justification.”’ There exist certain factual inequalities that may legitimately give rise to inequalities in legal treatment that do not violate principles of justice. The Court held that,

Accordingly, no discrimination exists if the difference in treatment has a legitimate purpose and if it does not lead to situations which are contrary to justice, to reason or to the nature of things. It follows that there would be no discrimination in differences in treatment of individuals by a state when the classifications selected are based on substantial factual differences and there exists a reasonable relationship of proportionality between these differences and the aims of the legal rule under review. These aims may not be unjust or unreasonable, that is, they may not be arbitrary, capricious, despotic or in conflict with the essential oneness and dignity of humankind. [51]

89.             The Commission is of the view that distinctions based on grounds explicitly enumerated under pertinent articles of international human rights instruments are subject to a particularly strict level of scrutiny whereby states must provide an especially weighty interest or a compelling social need and rigorous justification for the distinction, as well as showing that the measure adopted is the least restrictive possible. [52] Whatever the case, the Commission considers that there is a strong presumption that any distinction based on one of the grounds mentioned in Article 1 of the Convention will be incompatible with the treaty.

90.             Furthermore, any distinction that affects the full exercise of rights contained in human rights treaties must meet the same criteria or parameters in order to be compatible with the international obligations of the states parties. The Court has said that Article 1(1) of the American Convention imposes on the States Parties the obligation to respect and guarantee the free and full exercise of the rights and freedoms recognized therein without any discrimination.  Any treatment that can be considered to be discriminatory with regard to the rights enshrined in the Convention is per se incompatible with that instrument. [53] In principle, human rights treaties apply to all individuals under the jurisdiction of the states parties without any distinction whatever. Thus, for example, Article 1 of the American Convention stipulates that the States Parties to this Convention undertake to respect the rights and freedoms recognized therein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms. Accordingly, at least basic human rights should be respected without any distinction. [54] It has been rightly said that the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens. [55]   Therefore, any distinctions established in the observance and guarantee of basic fundamental rights should, insofar as they constitute an exception to a basic rule, be applied in a restricted manner and the meet the conditions mentioned in the foregoing paragraph, without prejudice to the fact that some international instruments expressly provide for certain distinctions. [56] Even in such cases, permissible distinctions do not eliminate obligations under the overall system of protection of human rights. [57]

91.             The principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by treaties. [58] The Court has said that “such distinctions may serve as an instrument of protection for those who might need protection in accordance with their degree of weakness or helplessness”. [59] Such measures are perfectly compatible with conventional provisions. [60] In this connection, one can cite Article 1(4) of the International Convention on the Elimination of All Forms of Racial Discrimination, which provides, Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.

92.             Ultimately, all human rights treaties must be interpreted and applied in such a way as to protect the basic rights of individuals without discrimination of any kind. This basic precept in turn is based upon the fundamental premise that human rights protections are derived from the attributes of a person’s personality and by virtue of the fact that he or she is a human being, and not because he or she is the citizen of a particular State. These basic human rights protections under human rights treaties constitute obligations that states of the Americas must guarantee to all persons within their authority and control and are not dependent for their application upon such factors as a person's citizenship, nationality or any other factor, including immigration status. [61]

C.      Permissible limitations and restrictions on human rights

93.             The foregoing concepts notwithstanding, in analyzing the case of migrant workers it is important to consider the possibility that certain labor-related fundamental human rights are restricted by reason of the immigration status of these persons. In this connection it is necessary to examine the express limits in that regard contained in human rights treaties.

94.             The human rights enshrined in human rights treaties are susceptible to reasonable regulation. The exercise of some protected rights may even be subject to legitimate restrictions. For example, various human rights treaties mention valid grounds for the legitimate restriction of rights, including freedom of conscience and religion, freedom of thought and expression, right of assembly, freedom of association, freedom of movement and residence, right to found trade unions and to join the one of one’s choosing, right of access to public hearings in criminal trials, and right to life. [62]

95.             The restrictions that may be imposed on the exercise of human rights must meet certain requirements of form, which depend upon the manner in which they are expressed. They must also meet certain substantive conditions, which depend upon the legitimacy of the ends that such restrictions are designed to accomplish. [63] In this regard,  Article 29(2) of the Universal Declaration of Human Rights as a guiding instrument in this area provides,

In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

96.             The most usual formal limit is when the restriction on the right in question is prescribed by law. This should be understood “as only a law that has been passed by democratically elected and constitutionally legitimate bodies and is tied to the general welfare may restrict the enjoyment or exercise of the rights or freedoms of the individual“. [64] A law must be formulated with sufficient precision to enable the citizen to regulate his conduct and to foresee the consequences which a given action may entail. [65]

97.             The Court has found that in first place all restrictions on rights must be judged by reference to the legitimate needs of democratic societies and institutions. [66] Accordingly, “the just demands of democracy must consequently guide the interpretation” of permissible restrictions. [67] Furthermore, following the example of its European counterpart, the Court has found that the requirement that the restrictions should be “necessary,” while not synonymous with “indispensable,” implied the existence of a 'pressing social need' and that for a restriction to be “necessary” it is not enough to show that it is “useful,” “reasonable” or “desirable.” [68] . In other words, the restrictions must be “required by a compelling governmental interest.” Hence if there are various options to achieve this objective, that which least restricts the right protected must be selected. Given this standard, it is not enough to demonstrate, for example, that a law performs a useful or desirable purpose; that is, the restriction must be proportionate and closely tailored to the accomplishment of the legitimate governmental objective necessitating it. [69]

98.             Furthermore, permissible limitations on rights should proceed from the need to protect the rights guaranteed under human rights treaties, including the right to equality and non-discrimination. [70] Accordingly, restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner. [71]   This implies that all the considerations in the foregoing section apply in the interpretation of permissible limitations. 

99.             Finally, it is essential to mention that no permissible limitation on a right may entail the total denial of that right. In other words, the exercise of a right may be regulated, limited, or conditioned, but in no circumstances may it be converted into a mere illusion on the pretext of its limitation.

100.        There are two very important aspects to consider in any analysis. Immigration policy design and implementation [72] and labor market regulation [73] are legitimate objectives of the State. In order to achieve these objectives states may adopt measures that lead to the restriction or limitation of certain rights, provided they adhere rigidly to the standards mentioned above, namely that: (1) certain rights inalienable; (2), there are rights that are exclusively reserved for citizens; (3) other rights are conditioned to documented immigrant status, such as those connected with freedom of movement and residence; (4) certain rights may be restricted provided the following conditions are met: a) the restriction must be determined by law; b) it must respond to an explicit legitimate state interest; c) the restriction must be reasonably related to a legitimate objective; and, d) there are no other means less onerous to those affected for achieving those ends.

101.        In the end, the OAS Member States are obliged to guarantee the rights under the Declaration, the Convention, and any other treaty to which they may be party 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 aliens.  This means that the immigration status of individuals may prove to be a factor in the evaluation of the manner in which the State is able to give adequate effect to the rights enshrined in the Declaration or the Convention. However, immigration status can never serve to exclude individuals from the basic protections afforded them by international human rights law.

D.      Superiority of certain labor rights

102.        A worker is an individual who performs a physical or intellectual activity for an employer -natural or legal person- in the conditions as to time, place and way that the employer tells them. The asymmetry in the employer-worker relationship explains the development of national and international standards that seek to regulate the conditions of this contractual relationship, by establishing rights and obligations for workers and employers. The aim of labor standards and procedures is to guarantee equitable relations for workers and employers. The domestic law of each country contains detailed protections for labor rights. Broadly speaking, domestic legislations contain a separate body of rules on labor relations. Many have special labor courts and specific procedures.

103.        At the international level, in addition to being protected by general instruments on human rights, labor rights have undergone special development in the framework of ILO. This entity has conducted a vast amount of research and work on international law in this area, both on individual aspects of labor law and general labor rights, and on specific situations and conditions of labor. [74] In the course of its activities the ILO adopted the Declaration on fundamental principles and rights at work. In that declaration ILO recalls that the labor principles and rights developed in Conventions have been recognized as fundamental, and even if they have not ratified the Conventions in question, the member states have an obligation arising from their membership in the ILO, to respect, to promote and to realize those rights and principles. [75]

104.        Furthermore, among all the rights they protect, international instruments on human rights also include the right to work and other labor rights. [76] Probably the broadest range of labor rights in the human rights treaties brought into being by the United Nations is found in the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CTM), which enters into force on April 1, 2003.

105.        An examination of the evolution of international human rights law and international labor law reveals the existence of a group of fundamental labor rights that derive from, and constitute a fundamental core of, labor law. These fundamental labor rights are essential to ensure and protect the dignity and well-being of workers. Fundamental labor rights ensure for the workers the possibility to engage in a paid activity in fitting and fair conditions, for which they receive a wage that must enable them to afford a decent life for themselves and their families. In other words, protection and guarantee of the right to work is a way of ensuring the right to life. Furthermore, work must be a form of realization and an opportunity for the worker to deploy his or her abilities and potential with a view to achieving full development as a human being.  Various theoretical approaches to the law, political science, and economics recognize in work one of the fundamental pillars of human and social development. [77] In light of the above, fundamental labor rights must be ensured and protected.

106.        International human rights law recognizes a broad range of labor-related rights. With the exception of the above-mentioned ILO Declaration, thus far not attempt has been made at a systematization of such rights in order to place them in a hierarchical order, according to which some of these labor rights are regarded as fundamental and belong among those for which discrimination is impermissible, even on the grounds of immigration status.

107.        Accordingly, in the brief it submitted to the Court for the processing of Advisory Opinion OC-18, the IACHR said that in its opinion the fundamental labor rights are: prohibition of forced or compulsory labor; the right to a salary; the right to form and join trade unions; elimination of discrimination in employment and occupation; and abolition of child labor.  Following, is an analysis of each of these rights.

Prohibition of forced or compulsory labor

108.        In accordance with the right to liberty applied to the right to work, no one may be compelled to work in a forced of compulsory manner. Work is an expression of personal liberty and on that premise an individual may not be required to perform labor. Exceptions to this prohibition are criminal penalties that include a labor component, the obligation to aid the victims of an emergency or a natural disaster, and any compulsory social work that is part of the civil duties of the citizens of a state. In all other cases work must be voluntary. [78]

Right to a salary

109.        As mentioned, one of the elements of employment is the payment of a salary in exchange for the work performed. The right to a salary includes the principle of equal remuneration for work of equal value. [79] This entails the prohibition of discrimination in salary among workers who perform the same activity. The right to a salary also includes the right to just and favorable remuneration for the labor performed. This second element incorporates the concept of equity between pay and work. Finally, the salary must ensure a decent living for workers and their families and be determined according their capacity and skill. [80]

Right to form and join trade unions

110.        The right to form and join trade unions derived from freedom of association and the right to work, ensures for workers the possibility to join or form trade unions with a view to protecting their rights and interests. [81]   Racial discrimination is expressly prohibited in the exercise of this right. Furthermore, this right gives rise to the right to collective bargaining on wages and conditions of labor. [82]

Elimination of discrimination in employment and occupation

111.        Workers who perform the same labor are subject to the same conditions of employment and occupation. [83] States parties must adopt measures designed to eliminate discrimination with respect to conditions of employment and occupation. Conditions of employment cover: safety and hygiene in the workplace, [84] the opportunity to be promoted based on seniority and competence, rest, hours of work, vacations, and protection in the termination of employment. [85] Conditions of occupation include: equal access to employment opportunities, minimum working ages, restriction of home work, and restriction of night work. [86]

Abolition of child labor

112.        Minors shall not perform any work that is hazardous or dangerous, interferes with their education, or is harmful to their health or physical development. This right gives rise to concrete obligations for the state: provide for a minimum age for employment; provide for appropriate regulation of the hours and conditions of employment for children; and ensure compliance with these labor standards. [87]

E.       Conclusion

113.        The Commission says in its brief that the principle of non-discrimination in international human rights law recognizes the equality of all individuals and imposes certain prohibitions on states. Distinctions based on gender, race, religion, or nationality are specifically prohibited, at least as regards the enjoyment and exercise of basic rights enshrined in international instruments. With respect to these prohibited classifications, any distinction made by states in the dispensation of benefits and privileges must be strictly justified by a legitimate interest of the state or society, which, furthermore, cannot be served by non-discriminatory means. International human rights law not only prohibits deliberately discriminatory practices and polices, but also any whose impact on these categories of persons is discriminatory, even though discriminatory intent might not be provable.

114.        Immigration status, understood as the regular or irregular presence of an alien in another country in accordance with the domestic laws of that country, is not one of the categories expressly prohibited by the principle of equality. Accordingly, in principle, states may establish distinctions in the enjoyment of certain benefits between its citizens, aliens with regular status, and undocumented aliens. However, the Commission holds that the principle of progressive development of the standards of international human rights law requires a detailed examination of the following factors: 1) the content and scope of the rule that discriminates between categories of persons; 2) consequences of that discriminatory treatment for persons not favored by the state’s policy or practice; 3) possible justifications offered for this different treatment, in particular how they relate to a legitimate state interest; 4) a reasonable relationship of proportionality between the legitimate interest and the discriminatory practice or policy; 5) existence or non-existence of less harmful means or methods for people to achieve those same legitimate ends. The Commission concludes that under international law there is a range of fundamental labor rights. In light of their fundamental nature, discrimination among workers in the enjoyment and exercise of those rights is not permissible. These rights include prohibition of forced or compulsory labor; the right to a salary; the right to form and join trade unions; elimination of discrimination in employment and occupation; and abolition of child labor. Based on the foregoing, a state cannot discriminate between documented or regular workers and undocumented or irregular workers when it comes to the protection and guarantee of their fundamental labor rights.

V.      ON-SITE VISIT TO COSTA RICA         

A.      Introduction

115.        The Rapporteurship decided to study the situation in the Republic of Costa Rica given the massive presence there of migrant workers, both documented and undocumented, from the region and from outside the region.  Migration to Costa Rica led the government of Miguel Angel Rodríguez Echeverría to organize a wide-ranging program for regularizing immigration status in 1998-1999. Thus the Rapporteurship was interested in learning about the impact of this measure.  Accordingly, in order to gather information on the situation of migrant workers in Costa Rica, and in particular to collect background information on the implementation of the Agreement on Assisted Return of Extra-regional Migrants, an inter-governmental initiative designed to expedite the return of extra-continental migrants, two members of the Rapporteurship’s team, Helena Olea and Andreas Feldmann, visited Costa Rica from November 19 to 21, 2001. In March 2002, the Commission sent the Government of Costa Rica a preliminary report on that visit.  At the request of the Government of Costa Rica, contained in its extensive response, the Office of the Special Rapporteur for Migrant Workers and their Families, Juan E. Méndez, visited Costa Rica once again, along with Helena Olea and Andreas Feldmann, from July 22 to 24, 2002. During this second visit, the team led by the Special Rapporteur gathered additional information for the preparation of this report.

116.        During their first visit, the members of the Rapporteur’s team held meetings with various government representatives. They also visited several places of interest, including La Carpio, a settlement populated mostly by Nicaraguans located in the outskirts of San José, and the Fifth Police Station (Quinta Comisaría), the country’s main detention center for migrants. The Rapporteurship team met with: Eduardo Araya, Vice-Minister of Interior; Eduardo Vílchez, Director of the General Bureau of Migration (Dirección General de Migración y Extranjería, hereinafter “DGME”); José Manuel Echandi, Ombudsman, and Katia Rodríguez, an official in that office; Carlos Muñoz, Health Projects Coordinator of the Costa Rican Social Security Fund (CCSS), and Sergio Ugalde and Arnoldo Brenes, staff members of the Ministry of Foreign Affairs, among other government officials.  In addition, and taking advantage of the context of the meeting of the Consultative Group to the Regional Conference on Migration, held in Heredia, Costa Rica, between November 14 to 16, 2001, the Rapporteur’s team met with representatives of inter-governmental organizations and non-governmental organizations that work in Costa Rica. These include the United Nations High Commissioner for Refugees, the International Organization for Migration, Children’s Defense International, Foro Emaús, El Productor, and the Central American Human Rights Commission. The Rapporteur’s team also met with Abelardo Morales, a researcher with the Facultad Latinoamericana de Ciencias Sociales (FLACSO, Costa Rica).

117.        During the second visit, Juan E. Méndez and his team once again met with authorities such as the Ombudsman and officials Katia Rodríguez, Sergio Ugalde, and Arnoldo Brenes.  Juan E. Méndez and his assistants also met with officials of the new administration of President Abel Pacheco, of the Social Christian Unity Party (PUSC).  These included Roberto Tobar, Minister of Foreign Affairs; Ovidio Pacheco Salazar, Minister of Labor and Social Security; Randall Quirós, Vice-Minister of Interior; Marco Badilla, Director of the General Bureau of Migration (DGME); and Johny Ruiz Arce, Chief of the Technical Area of Migration for the Ministry of Labor and Social Security.  Additionally, the members of the Rapporteur’s team met with Gabriela Rodríguez, Special Rapporteur on the Human Rights of Migrants of the United Nations Commission on Human Rights; Roberto Kozak, Regional Representative of the International Organization for Migration (IOM) for Central America and Mexico, as well as representatives of several non-governmental organizations (NGOs).  These include: the Center for Justice and International Law (CEJIL); the Association of Domestic Workers (ASTRADOMES); the Costa Rican Human Rights Commission; Children’s Defense International; the Central American Human Rights Commission (CODEHUCA); Foro Emaús; and the Center for Peace Studies.

118.        It should be noted that the Rapporteurship encountered a high level of cooperation on the part of all Costa Rican authorities.  They not only provided kind assistance in organizing the visit, but also were ready and willing to engage in open and candid conversations about the situation of migrant workers and their families in Costa Rica.  Representatives of inter-governmental organizations, researchers, and members of civil society also showed an excellent disposition to collaborate with the IACHR’s team.  The Rapporteurship wishes to express its gratitude and highlights the excellent spirit and assistance of all these persons.

119.        The present report is divided into nine sections. The first briefly explains the methodology used by the Rapporteurship to prepare this report.  In order to contextualize the analyzed problem, the third section examines migration in Costa Rica, highlighting the country’s economic, social, and political conditions, and how migration affects them. This part also describes some of the main characteristics of migratory flows and the visit that members of the Rapporteur’s team made to La Carpio, a settlement inhabited mostly by Nicaraguans. The fourth section analyzes whether migrant workers and their families are victims of discriminatory practices in Costa Rica.  The fifth section describes and analyzes migration policy and practice in Costa Rica. The sixth section of the report analyzes conduction, smuggling, and trafficking of migrant workers and their families.  The seventh section, examines due process guarantees. The report then goes on to analyze and describe the deprivation of liberty of migrants. The ninth section analyzes the labor rights and other economic and social rights of this population. Finally, conclusions are presented and recommendations made to the State and other relevant actors.

120.        The draft “Report on the Visit of the Special Rapporteurship on Migrant Workers and Their Families to Costa Rica on November 19-21, 2001 and July 22-25, 2002” was approved by the Commission on December, 2002.  In accordance with Articles 56-58 of the Commission’s Regulations, it was transmitted to the Government of Costa Rica, with a request that the latter transmit the observations deemed pertinent within a period of one month. O n January 17, 2003, by note 08-AM-03 of the Ministry of Foreign Relations and Cult, the State of Costa Rica presented its observations.  In conformity with the terms of its Regulations, the Commission studied those observations and included those it deemed pertinent.  The Commission approved the final version of its report on March 7, 2003.

B.       Methodology

121.        As a guide for preparing the following report, the Rapporteurship drew on the working methodology normally used by the IACHR for its on-site visits.  It should be noted that this is a standardized procedure that has been used to guide the work of the IACHR for several decades. The methodology that the IACHR relies on is similar to that used by several inter-governmental organizations monitoring human rights in different parts of the world. [88]   For several reasons, including the duration of the visits and the limited human resources available to the IACHR, the reports of the on-site visits as well as the visits of the special rapporteurs (such as this one) do not claim to offer an exhaustive account into the human rights problems and their relationship with migrant workers and their families in a given country, but instead seek to call attention to specific human rights problems that affect the visited countries.  At the same time, the reports seek to highlight best practices in the area of human rights in order to encourage other member states of the OAS to emulate such actions.

122.        The assessments set forth in this report are based on two main sources of information. First, primary sources are used, such as testimonies of migrant workers and members of their families as well as different persons who belong to various institutions, including the government, academics, members of inter-governmental agencies, and members of non-governmental organizations.  In order to guarantee the equanimity and impartiality of its reports, the IACHR always meets with the broadest possible array of individuals and organizations.  This helps to attain a representative, reliable, and exhaustive account as possible.  Similarly, in preparing the reports, the IACHR ensures that all the parties interviewed are cited. Nonetheless, in some occasions sources are not cited, when individuals so request it.   The reports are also based on secondary sources such as academic writings, reports, and documents.  As in the case of primary sources, as a general practice, the IACHR and the Rapporteurship are always careful to ensure that these sources are credible and serious.

123.        It must be noted that this report was drawn up on the basis of the broadest array of information and that, prior to its visits, the Rapporteur’s team conducted lengthy research prior to its two visits.  During and after the visit, those who did the writing and research for the report corroborated and supplemented the information obtained. The contents and comments are the result of a lengthy research effort that was conscientiously discussed and considered by the Rapporteur and his team, and then submitted to the plenary of seven commissioners of the IACHR, who approve the final version of all Commission’s reports.

C.      Migration in Costa Rica

124.        Given its political stability, relative economic prosperity, and advanced welfare system, Costa Rica has become the leading receiving country of migrant workers in Central America. [89]   Like its Central American neighbors, due to its geographic location in recent years Costa Rica has also become a transit country for migrants. A large number of people, mostly South American, but also Asian, African, Middle Eastern, and Eastern European, cross through Costa Rica on their way to Mexico, Canada, and the United States.

125.        Immigration has become a major issue in Costa Rica, given the effects in the last decade of the massive presence of migrant workers in the country’s life.  From the internal standpoint, migration has economic, social, and political impacts.  The presence of migrant workers has a considerable economic impact.  Migrant workers contribute to economic activities that are very important to Costa Rica, such as agriculture, construction, and the services sector.  In addition, their presence has a major impact on the domestic labor market.  The extensive presence of foreigners also has conspicuous social effects, and has helped transform the local culture and customs.  The social and economic influence of the large numbers of foreigners on Costa Rican society, as would be expected, is also felt in national politics.  Internationally, the massive presence of Nicaraguans affects bilateral relations between Costa Rica and Nicaragua.

126.        The main flow of immigrants to Costa Rica is of Nicaraguan citizens.  Given a long border and the economic relationship between the two countries, the migration of Nicaraguans to Costa Rica is not a new phenomenon.  In the mid-19th century, during the development of an incipient industry for the export of agricultural goods such as coffee, sugar cane, and bananas, Costa Rica had to import Nicaraguan labor. [90]   That influx of people opened the way to new waves of migration from Nicaragua. Nicaraguans have migrated historically in search of better employment opportunities and access to social services including health and education. They have also migrated after natural disasters or as the result of political instability or armed conflict. During the 1980s, for example, Costa Rica received a considerable number of Central American refugees – as many as 50,000 people–mostly Nicaraguans and Salvadorans.  Costa Rica granted refugee status to 46,000 Nicaraguan citizens. [91]

127.        During the 1990s, there was a considerable increase in the numbers of Nicaraguans who migrated to Costa Rica. This trend observed to the steady decline of the Nicaraguan economy, which has led to widespread impoverishment of the population.  In the last decade, the Nicaraguan economy has developed serious structural problems: negative growth rates, lack of productivity, and inability to generate employment in the formal sector.  As a result, the country has not been able to create an appropriate infrastructure or provide important social services to the population like education, health, and pensions. [92]

128.        The National Bureau of Migration (DGME: Dirección General de Migración y Extranjería) of Costa Rica and several other studies coincide in indicating that today between 300,000 to 400,000 Nicaraguans reside in Costa Rica. [93]   This represents 7.5% to 9% of the total population of Costa Rica. Of these persons, 213,000 have regularized their immigration status; the rest are undocumented persons. The discrepancy between the number of Nicaraguans documented and the estimated total derives from two factors: first, many Nicaraguans did not benefit from the last immigration amnesty carried out by Costa Rica in 1998; and second, many other migrant workers came to Costa Rica after the amnesty.  Of late, there has also been a large flow of Colombians, who, given the delicate political and economic situation in their country, emigrate to Costa Rica in search of security and better economic opportunities. [94]   Costa Rican authorities estimated that today there are some 4,280 Colombians in Costa Rica with regular immigration status, and an undetermined number on an irregular basis. [95]   Many of these persons have sought asylum and/or refugee status upon arriving in Costa Rica. [96]   According to figures of the DGME, in 1999 there were nationals from the following countries residing in Costa Rica: Cuba (5,042), Panama (4,051), Honduras (1,671), Guatemala (1,178), El Salvador (6,669), Peru (2,272), Peoples Republic of China (2,903), Taiwan (2,283), Germany (1,122), Spain (1,609), and Italy (1,400). [97]   Cuban citizens routinely request asylum upon their arrival to Costa Rica. [98]   Authorities also state that in recent months there has been a significant increase in the number of Argentine nationals. Costa Rica also has a large number of residents who are U.S. citizens (6,779), mostly retirees.  Academics and authorities indicate that some of these persons move their residency to Costa Rica to, among other things, they can gain access to better health benefits, while others are attracted by the cheaper cost of living or the climate.

129.        The Nicaraguan population, which accounts for the majority of the migrant workers in the country, [99] has various unique characteristics. Almost three-fourths emigrate to Costa Rica for economic reasons; the rest do so to re-unite their families, or for political reasons.  The majority come to Costa Rica with the intention to stay. [100]   Most of the Nicaraguan migrant workers are young (20 to 49 years of age), with a low level of schooling. [101]   According to the Costa Rican National Institute of Statistics and Census (INEC), in 2001, 6.7% of the Nicaraguan residents live in extreme poverty, another 26.3% are poor; [102] and 19.3% are unable to meet their basic needs. [103]      The line of extreme poverty or indigence is the monetary value of a basic basket of food products that reflects the cost needed to meet minimum nutritional requirements. The standard frequently used is 2,300 calories and 45 grams of protein per day per adult equivalent. Those households whose consumption does not even cover the minimum nutritional requirements are considered “indigent” or “in extreme poverty.”  The measurement of poverty based on unmet basic needs defines a household as poor when it has serious unmet needs in access to education, health care, nutrition, housing, urban services, and employment opportunities among Nicaraguan migrants. Approximately 60% are men, and 40% women.  The population is divided almost equally between urban and rural. Most live in the central region, and in the regions of Huetar and Atlántica Norte.  A large yet undetermined percentage of the Nicaraguan population is residing in marginal urban neighborhoods: many live in houses of light material, while others rent low-cost housing.  Such urbanized areas generally have basic infrastructure problems, as they do not have or have shortcomings in basic services such as electricity, sewerage, drinking water, paved access, transportation, and health and education services.  In addition, there are problems of overcrowding and security, and conflicts over land tenure. [104]

130.        As indicated, Costa Rica promoted an exceptional migration regime in 1998-1999 to regularize the situation of undocumented immigrants. [105] This point will be analyzed in greater detail in Section V of this report.

131.        With respect to the position of the Costa Rican government on migration and its relationship to human rights, in general, sensitivity was noted with respect to the issue of migrant workers.  Government officials indicated their preference for and interest in reinforcing multilateral processes to regulate migration.  In this respect, they indicated they favor establishing forums such as the Regional Conference on Migration and the Central American Organization for Migration.  In addition, government officials indicated that in the wake of the terrorist attacks on New York and Washington in September 2001, Costa Rica shares the concern of other States of the region in terms of increasing immigration controls to forestall possible terrorist attacks. [106]

132.        Costa Rica has ratified a series of international human rights treaties and agreements that provide general guarantees for all persons, and that cover persons who migrate such as migrant workers. [107] In addition, Costa Rica has ratified a series of regional human rights instruments that contain provisions to guarantee the rights of migrant workers, such as the American Convention on Human Rights; the Charter of the Organization of American States; the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights; and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women. Other instruments ratified by Costa Rica include: the Convention 182 of the International Labor Organization (ILO) on the prohibition of the worst forms of child labor; the International Convention on the Elimination of the All Forms of Racial Discrimination, the Convention 111 of the ILO on employment and occupation discrimination, and the Convention 117 of the ILO concerning basic aims and standards of social policy. Furthermore, Costa Rica recently ratified the Convention on Organized Transnational Crime and the Protocol to Prevent, Suppress and Punish Trafficking of Persons, Especially Women and Children; and the Protocol against the Smuggling of Migrants by Land, Air and Sea.  Nonetheless, it has not ratified other more specific instruments for the protection of migrants, such as the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; Convention 97 of the ILO on Migrant Workers; ILO Convention 143 Concerning Migration in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers; and the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others. According to article 7 of the Political Constitution of Costa Rica, international instruments ratified by Costa Rica have constitutional rank.

133.        At the same time, in order to contribute to controlling the migration of Nicaraguan citizens, the Government of Costa Rica has signed similar agreements with the Government of Nicaragua. These include an agreement on Migrant Labor (1993), which regulates the admission, entry, stay, and exit of temporary migrant workers for agricultural activities such as coffee and sugar cane.  Costa Rica has also signed agreements on security and migration and on trade and economic development, cooperation, and labor of migrant workers. [108]   Recently, on October 24 and 25, 2002, the ministries of labor of Nicaragua and Costa Rica signed a new agreement to undertake joint strategies to “organize and control the migratory movements of persons for purposes of employment.” [109]   Among other points, the agreement promotes the exchange of information between both governments on labor market conditions, and publicity campaigns for employers and migrant workers on rights, especially labor rights.         

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