...continued

49.     In January 1998, given the imminence of Mr. Suresh’s deportation from Canada, the petitioners requested that the Commission issue precautionary measures aimed at suspending it until such time as it had an opportunity to consider the case. The Commission granted the request and the precautionary measures were issued.

          50.     In August 1998, the State asked the Commission to revoke the precautionary measures since Mr. Suresh had been released in March of that year–subject to the performance of various conditions–with which it was irrelevant for the Commission to decide on his detention. The State also explained that all that remained was to determine whether Mr. Suresh’s deprivation of liberty had been in keeping with the Immigration Act and the review of the detention by judicial remedy–a matter that was pending before the federal court. In view of the foregoing, the State requested that the petition be declared inadmissible for failure to exhaust domestic remedies.

          51.     The Commission determined that it was competent ratione personae, ratione loci, and ratione temporis to take cognizance of the petition. In terms of its competence ratione materiae, it considered that it was competent with respect to the deprivation of liberty and the existence of a judicial proceeding to challenge that measure, as well as to decide on the discriminatory treatment accorded Mr. Suresh in relation to Canadian citizens. With respect to the exhaustion of domestic remedies, it was determined that the petitioners had exhausted all of them, including before the highest court, the Supreme Court of Canada. The petition was submitted nine months after Mr. Suresh was deprived of liberty, and since the violation that is the subject of the petition refers to the non-existence of a judicial remedy to question that detention, Article 31 of the Commission’s Rules of Procedure, on exceptions to the six-month time limit, applies; accordingly, the Commission determined that the petition had been submitted within a reasonable time period. Finally, the facts addressed by the petition are not pending resolution before any intergovernmental organization. In summary, the petition was declared admissible with respect to the alleged violation of the right to equality before the law (Article II), right to justice (Article XVIII), and right to protection from arbitrary arrest (Article XXV) of the American Declaration. The Commission must determine whether international human rights law requires states to guarantee the right to habeas corpus to determine the legality of the deprivation of liberty of both nationals and foreigners.

          Personal liberty and the right to information on consular protection

          Report Nº 12/02, admissibility of Petition 12.090

          52.     In February 2002, petition 12.090 was admitted, regarding Jesús Enrique Valderrama Perea, a Colombian citizen who submitted a petition to the Commission in September 1998 alleging his human rights had been violated by Ecuador. The petitioner alleges that the Ecuadorian State is responsible for depriving him of his liberty and responsible for the mistreatment to which he was subjected during the pretrial detention, which was prolonged. As of the date of approval of the admissibility report, Mr. Valderrama Perea was still being detained in Ecuador.

          53.     The petitioner argues that he was detained May 2, 1996, in Quito as he prepared to board a plane to Bogotá, Colombia, by three individuals who did not identify themselves or present an arrest warrant. These persons physically abused him when taking him to Interpol offices in Quito. There he was questioned by Captain Edmundo Mera about the reasons for his trip to Bogotá, and he was informed that he had been arrested for drug trafficking. The petitioner asserts that he continued to be mistreated and subjected to verbal threats. Later, he was taken to a bathroom where he was tortured and threatened.

          54.     The petitioner considers that the facts constitute a violation of the following rights: right to humane treatment (Article 5); right to personal liberty (Article 7); right to a fair trial (Article 8); right to compensation (Article 10); right to privacy (Article 11); right to equality before the law (Article 24); and the right to judicial protection (Article 25), along with the obligation to respect the rights (Article 1), all of the American Convention on Human Rights.

          55.     In April 1999, the petitioner informed the Commission that he was still deprived of his liberty, without any outcome in his case. In November 1998 he was indicted by the prosecutor for narcotics trafficking. He added that from the time of his detention he had asked to communicate with his embassy, but that the request was denied.

          56.     In addition, the State never answered the communications from the Commission, accordingly, its position on the facts alleged by the petitioner is not known. The lack of a response by the state implies a tacit waiver of its right to argue objections to the admissibility of the petition.

          57.     The Commission determined, therefore, that it was competent ratione personae, ratione materiae, ratione temporis, and ratione loci. With respect to the exhaustion of domestic remedies, the petitioner alleges that he has been deprived of liberty for five years without there being any final judgment; moreover, the State has not responded to the petition, and so it has tacitly waived the possibility of arguing failure to exhaust domestic remedies. The Commission finds that the petition was submitted within a reasonable period. There is no information indicating that this matter is being considered by another international procedure. Accordingly, the Commission decided to admit the petition alleging violations of the rights mentioned by the petitioner.

          Petition 11.620, application to the Court

          58.     Case 11.620, of Rigoberto Acosta Calderón against Ecuador, was referred to the Court on June 25, 2003. The Commission asked the Court to establish the international responsibility of the Republic of Ecuador for violating the American Convention in the criminal trial of Rigoberto Acosta Calderón, a Colombian citizen who was arrested on November 15, 1989 by the Military Customs Police on suspicion of drug trafficking. Mr. Acosta did not have access to an attorney during the preliminary questioning by the Military Police, the court only took his statement two years after he had been detained, he was not notified of his right to consular assistance, and at no time in the trial for drug trafficking did the alleged evidence against him appear. In particular, the Commission argued in the application that the State is responsible for violating Articles 7(3), 7(5), 8(1), 8(2), 8(2)(d) and (e), 24, and 25, all in conjunction with the obligations spelled out at Articles 1(1) and 2 of the American Convention.

Right to a fair trial, right to personal liberty, and right to information about consular protection

Report Nº 77/03, admissibility of Petitions 12.091 and 172/99

          59.     In 2003, the Commission admitted petitions 12.091 and 172/99 by admissibility Report Nº 77/03. In 1998, the Commission received a complaint against Ecuador for violation of the rights of Mr. Juan Carlos Chaparro Álvarez, a Chilean citizen, presented by his lawyer. The petition alleged the violation of the following rights: right to humane treatment (Article 5(1) and (2)), right to personal liberty (Article 7(2), (3), (4), (5), and (6)), right to a fair trial (Article 8(1) and (2)), right to private property (Article 21(1) and (2)), and right to judicial protection (Article 25(1)), in conjunction with the obligation to respect the rights (Article 1(1) of the American Convention). Several months later, the Commission received a complaint alleging violation of the human rights of Freddy Hernán Lapo Iñiguez, an Ecuadorian citizen, represented by his attorney. The petition alleges a violation of Article 7(2), (3), and (5) in relation to Article 1(1) of the American Convention. The Commission decided to consolidate the two petitions in one case since they addressed the same facts, in keeping with Article 29(1)(d) of its Rules of Procedure. Since this chapter of the Rapporteurship’s report is reviewing the case-law from the point of view of the protection of the human rights of migrant workers and their families, only the facts and arguments with respect to Mr. Chaparro Álvarez are addressed, as he is a migrant worker.

          60.     The facts can be summarized as follows. Mr. Chaparro Álvarez was detained by the police at home, without an arrest warrant, accused of drug trafficking. That same day, some employees of the company he owns were detained. Mr. Chaparro Álvarez was taken to a cell where he was held incommunicado for five days. The authorities did not allow him to contact his family or a lawyer, and failed to inform the Chilean consulate of his detention. After 23 days of detention, an arrest warrant was issued for him, even though the expert information indicated that the accusations were unfounded. Mr. Chaparro Álvarez was accused of belonging to an organization of drug traffickers. When the complaint was lodged with the Commission, he had been deprived of liberty for nine months. Later, pursuant to a declaration that the law under which he was accused was unconstitutional, he sought his release, which occurred one year, six months, and 11 days after his detention. The case has yet to conclude, and has been suspended since his release. Mr. Chaparro Álvarez argues that his detention and indictment were aimed at confiscating a factory he owns.

          61.     The petitioner argues that Mr. Chaparro Álvarez’s right to personal liberty was violated because he was detained without any judicial warrant in circumstances that cannot be considered flagrant; he was deprived of liberty for 18 months for a crime he did not commit; his detention was for longer than the term established by law; and the recurso de amparo filed was rejected without any basis. The victim’s right to humane treatment was violated because he was deprived of liberty and held incommunicado. In addition, his right to property was violated with respect to his company, without him having committed any crime whatsoever, and his right to a fair trial was violated, because the judicial proceeding and deprivation of liberty did not respect the legal requirements, and he was not informed of his right to consular assistance when he was detained.

          62.     The State argues that no right was violated because it strictly observed the right to due process. In addition, it argues that the petitioner did not exhaust domestic remedies, since he can present a motion for cassation before the Supreme Court once the judgment is handed down, and can also file a motion for reconsideration.

          63.     The Commission determined that it is competent ratione personae, ratione loci, ratione temporis, and ratione materiae to take cognizance of the petitions. With respect to the exhaustion of domestic remedies, the Commission took into account that, after the State’s response, the Fourth Chamber of the Superior Court provisionally dismissed the charges, with which the victim was released. Accordingly, one can conclude that domestic remedies were exhausted. In addition, the petition was presented within the six-month term. In addition, there are no petitions pending before other international organizations. With respect to Mr. Chaparro Álvarez, the petition was admitted in respect of the alleged violations of Articles 5, 7, 8, and 21 of the American Convention.

Right to due process, right to information on consular protection, and right to life

          Report Nº 52/02, merits of Petition 11.753

          64.     The Commission adopted report on the merits Nº 52/02, Ramón Martínez Villareal v. United States, on October 10, 2002. The petition was submitted to the Commission in May 1997. The facts can be summarized as follows: Mr. Ramón Martínez Villareal, a Mexican citizen, was sentenced to death on May 20, 1983, and is being held on death row at the Arizona State Prison Complex at Florence, Arizona, United States. The initial petition indicated that his execution was scheduled for May 21, 1997. Nonetheless, it has been postponed several times and is still pending, because of domestic judicial actions.

          65.     The petitioners indicate that Mr. Martínez Villareal suffers a mental illness, rendering him unfit to stand trial and to be sentenced to death. Additionally, they allege that the United States breached its obligation under the Vienna Convention on Consular Relations to give consular notification. Finally, the petitioners argue that Mr. Martínez Villareal’s rights were violated due to the delay in handing down a final judgment in his case. They also argue that the United States violated the victim’s right to equality before the law, in view of the differences in the application of the death penalty in the different states. The petitioners argue that there is a violation of the right to life, liberty, and personal security, (Article I), the right to justice (Article XVIII) and the right to due process of law (Article XXVI) of the American Declaration.

          66.     The petitioners argue that under the case-law of the Inter-American Court, Article 36(1)(b) of the Vienna Convention on Consular Relations confers a right on foreign persons who are detained to be informed of the possibility of receiving consular assistance. In addition, the Court found that when a state breaches this obligation it violates due process guarantees. In addition, in the event that the death penalty is imposed under these conditions, it would constitute an arbitrary deprivation of the right to life.[6] The petitioners insisted on the importance of consular protection in the criminal proceeding against Mr. Martínez Villareal mindful that he did not speak English, that he was represented by a novice attorney, and that during the preliminary hearings he did not have any translation or interpretation services. Many of these conditions could have been resolved with the participation of the consulate from the first stages of the process.

          67.     The petitioners allege that Mr. Martínez Villareal received ineffective legal representation during the criminal proceeding against him, and illustrate this point by making reference to omissions and errors in the way that criminal proceeding developed, which resulted in the accused’s mental condition not being considered during the proceeding, in violation of Articles I, II, XVIII, and XXVI of the American Declaration. Additionally, the Superior Court of Arizona, despite determining that Mr. Martínez Villareal suffered a mental illness, mental retardation and/or organic brain damage – held that he was mentally competent to be executed. The petitioners assert that there is a binding norm of international law among the member states of the OAS that obliges them to refrain from executing persons who are mentally incapacitated, and that the United States is under a duty to abide by it.

          68.     The State argues that the Vienna Convention on Consular Relations does not establish individual rights. It adds that in any event, the Mexican government learned of the criminal proceeding through the media. With respect to the victim’s mental condition, the State argues that it has not been shown that the delays in the criminal proceeding can be attributed to Mr. Martínez Villareal’s actions, and that in any event this is not an acceptable argument in United States criminal law. In addition, the State takes issue with the petitioner’s version according to which the court determined that Mr. Martínez Villareal suffers a mental illness, mental retardation, and/or organic brain damage. It alleges that the court indicated that it was just as likely that he was sane. Finally, it argues that the right to equality before the law was not violated, since all the states of the United States that apply the death penalty are under an obligation to abide by the same rules established by the Supreme Court.

          69.     In December 2000, the Commission admitted the petition by Report No. 108/00 with respect to the rights established in Articles I, II, XVIII, and XXVI of the American Declaration. The Commission sent a copy of the admissibility report to Mexico and requested information on consular notification by the United States of Mr. Martínez Villareal’s detention. As of the date of the report on the merits in this case, Mexico had not answered that request.

          70.     The Commission applied the highest level of scrutiny since this is a death penalty case. In addition, it explained that in so doing it is not violating the fourth-instance rule, since a petition is only admitted when it is determined that the rights of the victim were not protected and guaranteed as he or she pursued domestic remedies. The Commission also explained that while it is not competent to make pronouncements on the international responsibility of a state for violating the Vienna Convention on Consular Relations, it may consider whether the obligations established in that instrument were violated to the extent that they are part of a foreigner’s right to due process and a fair trial. The Commission considers that in view of the nature of the judicial guarantees of due process of law, the lack of access to consular assistance may put a detained foreigner in an especially disadvantageous situation. In other words, it is appropriate for the Commission to consider whether the State has complied with Article 36 of the Vienna Convention on Consular Relations, when it interprets and applies the provisions regarding the right to due process and the right to a fair trial (Articles XVIII and XXVI of the American Declaration) of a foreign person who has been arrested.

          71.     The Commission determined that the State did not show that it had complied with Article 36 of the Vienna Convention on Consular Relations with respect to Mr. Martínez Villareal. In addition, it determined that in view of Mr. Martínez Villareal’s personal conditions,–he did not speak English and was not familiar with the legal system–and the shortcomings of the defense–since he was represented by a lawyer who did not speak Spanish, who failed to contact his family, and who in fact acknowledged that his performance had been limited by his inexperience and ineffectiveness–the right to information on consular protection is in this case a fundamental component of the judicial guarantees of due process and an impartial trial. Moreover, if the State applies the death penalty to Mr. Martínez Villareal based on a criminal proceeding in which these rights were violated, it would constitute an arbitrary deprivation of life, in breach of the American Declaration. In view of the foregoing, the Commission determined that adequate reparations for these violations consist of holding a new trial in which these rights are protected and guaranteed and that if that is not possible, that Mr. Martínez Villareal should be released.

          72.     The report on the merits was approved by the Commission in October 2001 and sent to the State, which was asked to provide information on any measures it had taken to comply with the recommendations of that report within two months. The State responded to the Commission rejecting the report for three reasons: first, it argued, the American Declaration is not a source of legal obligations; second, the petition does not state facts that make out a violation of the obligations that emanate from that instrument; and third, the Commission is not competent to determine the scope and content of the obligations established in the Vienna Convention on Consular Relations. In addition to other considerations, the United States indicated that since 1998 it has been making efforts to improve compliance with the obligation to provide information about the right to consular protection with federal, state, and local authorities, particularly in the area of training. The Commission ratified the conclusions and recommendations of the report on the merits and ordered its publication in October 2002.

          Report Nº 61/03, admissibility of Petition P4.446/02

          73.     In October 2003, the Commission approved admissibility Report 61/03 on the petition submitted by a non-governmental organization on behalf of Roberto Moreno Ramos, a Mexican citizen who is a death row prisoner in the state of Texas. Mr. Moreno Ramos was sentenced to death on March 23, 1993. In the petition, it is noted that a hearing had been set for November 2002 to determine the date of execution. As of the preparation of this report, the Commission is unaware whether such a date has been set.

          74.     The petitioner argues that the United States is responsible for violations of the right to life, liberty, and personal security (Article I), the right to equality before the law (Article II), the right to justice (Article XVIII), the right to protection from arbitrary arrest (Article XXV), and the right to due process (Article XXVI) of the American Declaration because of the shortcomings in the criminal procedure against Mr. Moreno Ramos, which include the failure of the State to notify him of his right to information on consular protection when he was arrested, as established in the Vienna Convention on Consular Relations.

          75.     The petitioner alleges that domestic remedies were exhausted, or that he was denied access to them, or that he was kept from exhausting them, and that accordingly the petition is admissible. The petitioner explains that the decision was appealed, and that it was affirmed by the Texas Court of Appeals. The United States Supreme Court denied certiorari on April 28, 1997. Subsequently, Mr. Moreno Ramos filed a new motion, which was rejected by the Texas Court of Appeals on July 15, 1998. Additionally, Mr. Moreno sought to recur to other procedures before the federal courts of the United States. The last action was filed before the Supreme Court, and rejected on October 7, 2002.

          76.     The petitioner recognizes that most of the arguments presented in the petition were not submitted to the U.S. courts in the proceedings described above. Nonetheless, he argues that an exception to the exhaustion requirement applies, since he was not guaranteed the right to due process. Specifically, he explains that this was due to the incompetence of his attorney, both at trial and on appeal. The petitioner explained that the U.S. legal system does not allow one to allege new facts, such as the violation of Article 36 of the Vienna Convention on Consular Relations, inadequate legal assistance, confession of a crime of which he was not accused, and the discriminatory comments of the prosecutor after the conviction. In view of the foregoing, presenting a second review of the conviction would be ineffective for protecting Mr. Moreno Ramos of an illegal execution, and, to the contrary, would keep the Commission from learning of the case in a timely fashion.

          77.     The petitioner argues that the procedure for seeking pardon in the state of Texas cannot be considered such an opportunity to review and consider the decision as satisfies the requirement enunciated in the LaGrand case before the International Court of Justice (ICJ). Moreover, the petitioner argues that the case recently submitted by Mexico to the International Court of Justice (Mexico v. United States) does not constitute duplication of procedures. He explains that the procedure before the ICJ does not meet the requirements of Article 33(1) of the Commission’s Rules of Procedure regarding duplication of procedures, or that it fits under the exceptions of Article 33(2) for three reasons. First, the proceeding before the ICJ is not an individual petition, since individuals are barred from recurring to this court–only states may do so. Second, therefore it cannot be said that there is a bargaining process before the ICJ, since Mr. Moreno Ramos’s case is one of the 51 individual cases cited by Mexico to illustrate the systematic nature of the violation of Article 36 of the Vienna Convention by the United States. Finally, they explain that there is no certainty as to the impact of an ICJ decision regarding the violations of Mr. Moreno Ramos’s rights. Moreover, the ICJ is not competent to take cognizance of violations of the American Declaration, and the petitioner is alleging before the Commission the violation not only of his consular rights, but also of his right to due process.

          78.     On November 8, 2002, the Commission issued precautionary measures in favor of Mr. Moreno Ramos by which it asked the United States to take the necessary measures to preserve Mr. Moreno Ramos’s life until the Commission can study the case.

          79.     The State responded to the request indicating that the petition should be declared inadmissible for several reasons: first, the failure to exhaust domestic remedies; second, the Commission is not competent to take cognizance of the facts since they have to do with violations of the Vienna Convention on Consular Relations; third, this case is pending before the ICJ and therefore there is duplication of procedures; and finally, no violation of the American Declaration was shown.

          80.     The Commission determined that it is competent ratione personae, ratione temporis, and ratione loci to take cognizance of this petition. With respect to its competence ratione materiae, the Commission reiterated that it is competent to take cognizance of violations of the Vienna Convention on Consular Relations, insofar as a failure to make consular notification is a violation of the right to due process.[7]

          81.     The Commission must determine whether the case brought by Mexico against the United States before the ICJ constitutes duplication of procedures. In this respect, the Commission considers that the ICJ is an organ of the United Nations, whose jurisdiction was accepted by the United States when it signed the Additional Protocol to the Vienna Convention on Consular Relations for settling disputes, with which it constitutes an international governmental organization, in the terms of Article 33(1) of the Commission’s Rules of Procedure. Nonetheless, in the case pending before the ICJ, the parties are not the same, and the issues posed are not the same, accordingly there is no duplication of procedures.

          82.     The Commission decided to defer discussion of the exhaustion of domestic remedies to the discussion on the merits, considering that these two aspects are directly related. Additionally, the petition was submitted within six months of the last decision by the Supreme Court. In view of all the foregoing, the Commission decided to admit the petition with respect to Articles I, II, XVIII, XXV, and XXVI of the American Declaration, and decided to continue analyzing the merits of the case. In addition, it reiterated the precautionary measures, asking that the execution be suspended until the Commission has an opportunity to render a decision on the merits in this case.

          Right of undocumented immigrants to equality and non-discrimination

          Advisory Opinion OC-18

          83.     In May 2002, Mexico submitted to the Inter-American Court a request for an advisory opinion on the legal status and rights of undocumented workers. On September 17, 2003, the Court responded to the request with the extensive participation of the member states of the Organization of American States, the Inter-American Commission on Human Rights, non-governmental human rights organizations, the United Nations High Commissioner for Refugees, law firms, law professors, and law students.
 

          84.     Mexico put the following questions to the Court:

In the context of the principle of equality before the law enshrined in Article II of the American Declaration, at Article 24 of the American Convention, at Article 7 of the Universal Declaration, and at Article 26 of the [International] Covenant [on Civil and Political Rights...],

1.         Can a state of the Americas, in relation to its labor legislation, establish a prejudicially distinct treatment for undocumented migrant workers in terms of the enjoyment of their labor rights with respect to legal residents or citizens, in the sense that those workers’ status as migrants would per se hinder their enjoyment of those rights?

2.1       Should Article 2(1) of the Universal Declaration, Article II of the American Declaration, Articles 2 and 26 of the [International] Covenant [on Civil and Political Rights], and Articles 1 and 24 of the American Convention be interpreted to mean that the legal stay of persons in the territory of a state of the Americas is a necessary condition for that state to respect and guarantee the rights and liberties recognized in those provisions for persons subject to its jurisdiction?

2.2       In light of the provisions cited in the previous question: Can one consider that the deprivation of one or more labor rights based on the undocumented status of a migrant worker is compatible with the duties of a state of the Americas to guarantee non-discrimination and equal and effective protection of the law, as imposed by the above-cited provisions?

Based on Article 2(1) and (2) and Article 5(2), [both] of the International Covenant on Civil and Political Rights,

3.         What is the validity of the interpretation by a state of the Americas subordinating or conditioning any form of observance of fundamental human rights, including the right to equality before the law and the equal and effective protection thereof without discrimination, for pursuing migration policy objectives contained in its laws, independent of the rank that domestic law attributes to those laws, in the face of the international obligations arising from the International Covenant on Civil and Political Rights and other obligations erga omnes of international human rights law?

Considering the progressive development of international human rights law and its codification, especially through the provisions invoked of the instruments mentioned in this request,

4.         What is the nature today of the principle of non-discrimination and the right to equal and effective protection of the law in the hierarchy of norms established by general international law, and, in that context, can it be considered an expression of norms of jus cogens? If the answer to this second question is affirmative, what legal effects arise for the member states of the OAS, individually and collectively, from the general obligation to respect and ensure, under Article 2(1) of the [International] Covenant [on Civil and Political Rights], the observance of the human rights referred to in Article 3(I) and Article 17 of the Charter of the OAS?

          85.     On February 24, 2003, a public hearing was held at the headquarters of the Court in which representatives of Mexico, Honduras, Nicaragua, El Salvador, and Costa Rica, and the Inter-American Commission on Human Rights presented their arguments. In addition, in attendance as observers were representatives of Uruguay, Paraguay, the Dominican Republic, Brazil, Panama, Argentina, and the United Nations Rapporteur for the human rights of migrants. Last year’s progress report included the brief submitted by the Commission to the Court in this matter.

          86.     On June 4, 2003, a second public hearing was held at the Ministry of Foreign Relations of Chile, in which nongovernmental organizations, attorneys, academics, and students presented their arguments. The persons participating in that hearing also filed amicus curiae briefs. The Santiago hearing was attended by representatives of the Law School of the Universidad Nacional Autónoma de México (UNAM); the Harvard Immigration and Refugee Clinic of Greater Boston Legal Services, Harvard Law School; the Working Group on Human Rights in the Americans of Harvard; Boston College Law Schools and the Global Justice Center; an attorney from the Law Offices of Sayre & Chavez; a professor from Villanova University School of Law and an attorney from the National Employment Law Project, representing labor rights, civil rights and immigrant rights organizations in the United States; the Center for International Human Rights of Northwestern University, School of Law; the Instituto de Investigaciones Jurídicas of the Universidad Nacional Autónoma de México (UNAM); the Center for Justice and International Law (CEJIL); the Centro de Estudios Legales y Sociales (CELS); the Ecumenical Support Service for Refugees and Immigrants (CAREF); the Immigrant and Refugee Rights Law Clinic at the Universidad de Buenos Aires law school; the United Nations High Commissioner for Refugees (UNHCR); and the Central American Council of Human Rights Ombudsmen. In addition, representatives of the Republic of Mexico and the Rapporteurship for Migrant Workers and their Families, in representation of the Commission were in attendance.

          87.     The Court responded as follows to the questions put by Mexico. First, it determined that it has jurisdiction to render opinions on the interpretation of the Charters of the Organization of American States (OAS) based on the relationship between that instrument and the inter-American system for the protection of human rights. In addition, it indicated that everything in the Advisory Opinion applied to the member states of the OAS that have signed the Charter the American Declaration of the Rights and Duties of Man, the Universal Declaration of Human Rights, or ratified the International Covenant on Civil and Political Rights, independent of whether they have ratified the American Convention on Human Rights or its optional protocols.

          88.     Next, the Court referred to the state’s obligation to respect and ensure the human rights, and concluded that this obligation is found in the international instruments and has been reiterated by the international case-law. It indicated that in developing this obligation, the states are under a duty to “adopt positive measures, avoid taking initiatives that limit or violate a fundamental right, and to suppress those measures and practices that restrict or violate a fundamental right.”[8]  The Court continues its opinion indicating that non-discrimination, equality before the law, and equal protection of the law constitute a basic general principle. The obligation to respect and ensure human rights is closely tied to the principle of equality and non-discrimination. Accordingly, breaching this obligation by meting out discriminatory treatment gives rise to the international responsibility of the state.

          89.     The principle of equality and non-discrimination is enshrined in an extensive list of international instruments.[9] The Court indicated that this principle is fundamental for safeguarding human rights. Therefore, the states are under an obligation to refrain from including discriminatory provisions in their legal order, to eliminate discriminatory laws, and to fight discriminatory practices. The Court recurs to the comparative international case-law to illustrate the difference between discrimination and a justified differentiation or distinction. In addition, it holds that the principle of equality before the law, equal protection of the law, and non-discrimination is jus cogens because it is a foundation for the national and international legal order.  Next, the Court illustrates how legal acts that violate this principle “on grounds of gender, race, color, language, religion or creed, political or other opinion, national, ethnic or social origin, nationality, age, economic status, wealth, civil status, birth, or any other condition,” are not allowable in this day and age.

          90.     The Court next underscores that “the general obligation to respect and guarantee human rights is binding on the states, independent of any circumstance or consideration, including persons’ migratory status.”[10] One of the consequences of this is the duty of the states to establish a simple and effective remedy to which every person has access, independent of immigration status, to seek protection of his or her rights. This is an obligation erga omnes, which is imposed on the states with respect to the persons under their jurisdiction, independent of immigration status. The Court considers that this obligation applies to all the rights included in the American Convention and the International Covenant on Civil and Political Rights, including the right to judicial guarantees.

          91.     The Court continues developing its opinion placing emphasis on the vulnerability of migrants, which has an ideological dimension and persists in view of their legal and factual situation, producing differences between them and nationals. The Court adds that ethnic prejudice, xenophobia, and racism help impede the integration of migrants to society, while helping to bring about impunity for human rights violations. Accordingly, the international community has recognized the need to adopt special measures to ensure migrants’ human rights.

          92.     Guaranteeing and protecting the principle of migrants’ equality does not mean that the state cannot initiate actions against those who violate the legal order of the state in which they are located. In those cases, the state has the duty to protect and guarantee the human rights of migrants without any discrimination by based on regular or irregular immigration status, nationality, race, gender, or any other grounds. The Court clarifies that the state can accord differential treatment to documented and undocumented workers, or migrants and nationals, so long as it is “reasonable, objective, proportional, and does not harm human rights.”[11] On considering the principle of equality and non-discrimination, it is important to bear in mind the ongoing evolution of international law.

          93.     Continuing its analysis, the Court considers the situation of undocumented migrant workers and emphasizes that migratory status is not a justification for depriving them of the enjoyment and exercise of their human rights, among them their labor rights. When an undocumented migrant establishes a labor relationship, he or she acquires all labor rights. While the state and private persons are not obligated to hire undocumented workers, once they establish a working relationship with them, the undocumented workers acquire full labor rights without any discrimination based on their immigrant status. The Court explains that private persons also have the duty to abide by obligations erga omnes. In this case, in the framework of private labor relationships, the employer is under a duty to ensure the human rights of his or her workers. In addition, the state has the obligation to respect and ensure all the labor rights of all workers, and not to tolerate discriminatory situations. In other words, the state must ensure strict compliance with the labor laws for the purpose of eradicating discriminatory practices, and should also guarantee protection for these rights when the workers find it necessary to turn to the state for protection.

          94.     The Court explains later on that labor rights include those recognized by both the domestic and international law systems. Given the plurality of domestic and international laws on this subject, they must be interpreted applying the principle of pro homine, i.e. applying the provision that best protects the human person–in this case workers.

          95.     Some labor rights are fundamental for migrant workers. In the view of the Court, these are: “the prohibition on forced or compulsory labor, the prohibition on and abolition of child labor, special attention for working women, and the rights to form and join trade unions, to collective bargaining, to a fair wage for work done, social security, judicial and administrative guarantees, reasonable duration of the work day and in adequate working conditions (safety and hygiene), rest and remuneration.”[12] The Court considers that the exercise of these rights guarantees a dignified life to workers and their families. The Court adds that work should be a means of self-actualization, and an opportunity for developing aptitudes, skills, know-how, and potentials, such that the person can attain his or her integral development as a human being.

          96.     The states have the power to set migration policies and to adopt measures to control the entry, stay, and exit of persons from their respective territories, and to work in them. These measures should protect and guarantee the human rights of all persons, and, in particular, the rights of migrant workers. Not only must the domestic legal order be in keeping with the states’ international obligations, but the organs and officers of the three branches of government cannot subordinate or condition the protection and guarantee of the principle of equality before the law and non-discrimination on the attainment of their public policy objectives, including migration policy objectives.

          97.     The Court concludes its opinion in the following terms:

(1)        That the states have the general obligation to respect and guarantee fundamental rights. To this end they should adopt positive measures, avoid taking initiatives that limit or violate a fundamental right, and suppress the measures and practices that restrict or violate a fundamental right.

(2)        That the breach of the state, by any discriminatory treatment, of the general obligation to respect and guarantee human rights gives rise to its international responsibility.

(3)        That the principle of equality and non-discrimination is fundamental for safeguarding human rights both in international law and in domestic law.

(4)        That the fundamental principle of equality and non-discrimination is part of general international law, insofar as it is applicable to every state, independent of whether it is party to any given international treaty. In the present stage of the evolution of international law, the fundamental principle of equality and non-discrimination has become jus cogens.

(5)        That the fundamental principle of equality and non-discrimination, in view of its imperative nature, entails obligations erga omnes of protection that bind all the states and have effects vis-a-vis third persons, including private persons.

(6)        That the general obligation to respect and guarantee human rights is binding on the states, independent of any circumstance or consideration, including individuals’ migratory status.

(7)        That the right to due process of law should be recognized in the framework of the minimum guarantees that should be afforded any migrant, independent of his or her migratory status. The broad scope of the intangibility of due process encompasses all subject matters and all persons, without any discrimination whatsoever.

(8)        That the migratory status of an individual cannot constitute a justification for depriving him or her of the enjoyment and exercise of his or her human rights, among them labor rights. A migrant, on entering into an employment relationship, acquires rights by dint of being a worker, that must be recognized and guaranteed, independent of his or her regular or irregular status in the state where employed. These rights arise from the labor relationship.

(9)        That the state is under an obligation to respect and guarantee the labor-related human rights of all workers, independent of their status as nationals or foreigners, and not to tolerate situations of discrimination to their detriment in the labor relations established between private persons (employer-worker). The state should not allow private employers to violate workers’ rights, nor should it allow the contractual relationship to violate the minimum international standards.

(10)      That workers, as bearers of labor rights, should have available to them all adequate means to exercise those rights. Undocumented migrant workers have the same labor rights as all other workers in the state in which they are employed, and the state should take all measures necessary for this to be recognized and carried out in practice.

(11)      That the states cannot subordinate or condition the observance of the principle of equality before the law and non-discrimination on the objectives of their public policies, whatever they may be, including those related to migration.

          98.     Four judges of the Court wrote concurring opinions in which they detailed the points and arguments presented above in greater detail.

Right to nationality, to the recognition of juridical personality, judicial guarantees, rights of the child, to equality before the law, and to judicial protection

          Petition 12.189, application before the Court

          99.     Case 12.189 against the Dominican Republic was referred by the Commission to the Court. This is the first occasion on which the Court will hear a case against the Dominican Republic. The Commission submitted the application on July 11, 2003, for the purpose of having the Court decide on the international responsibility of the State considering that the authorities denied the girls Dilcia Yean and Violeta Bosico Cofi Dominican nationality, even though they were born in the Dominican Republic, and that it’s Constitution establishes the principle of jus soli. Considering the situation, the Commission asked the Court to declare the violation of the rights to recognition of juridical personality, judicial guarantees, rights of the child, to nationality, to equality before the law, and to judicial protection, established, respectively, at Articles 3, 8, 19, 20, 24, and 25, all in conjunction with Articles 1 and 2 of the American Convention.

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