Chapter VI - Annual Report 2004

SIXTH PROGRESS REPORT OF THE RAPPORTEURSHIP ON MIGRANT WORKERS AND THEIR FAMILIES IN THE HEMISPHERE

SIXTH PROGRESS REPORT OF THE RAPPORTEURSHIP ON MIGRANT WORKERS AND THEIR FAMILIES, CORRESPONDING TO THE PERIOD BETWEEN JANUARY AND DECEMBER 2004

I. INTRODUCTION

1. Considering the interest shown by a number of member states of the Organization of American States (OAS), and pursuant to its broad mandate to protect human rights, the Inter-American Commission on Human Rights (IACHR) decided to pay special attention to the situation of migrant workers and their families in the Americas. The interest referred to above was expressed in various statements issued by OAS member states[1] and led, in 1997, to the establishment of the Special Rapporteurship on Migrant Workers and Members of Their Families. In creating that body, the IACHR restricted its sphere of activity exclusively to the set of issues facing migrant workers and their families living abroad. Thus, the IACHR explained that it would not involve itself with other categories of migrants, such as persons who migrate for economic reasons within their own countries, internally displaced persons, stateless persons, refugees and/or asylum-seekers. Even so, the IACHR is fully aware that the categories just listed not only share common problems but also that, in certain circumstances, internal migrants, refugees, internally displaced persons, stateless persons, and asylum-seekers may become migrant workers (or vice-versa).

2. The IACHR decided to make the situation of migrant workers and their families a priority, given the serious human rights situation facing these people. Over the years, the IACHR has learned of the difficulties that migrant workers face through on-site visits, complaints of human rights violations it has received, and special hearings held to address the issue. The IACHR considers migrant workers and their families to be an especially vulnerable social group, often subject to abuse and systematic violation of their fundamental rights.

3. The IACHR's initiative to undertake a specific promotional effort to benefit migrant workers and their families has been well received by the heads of state and government of the Americas. In this vein, in the Declaration of the Second Summit of the Americas, held in Santiago, Chile, in 1998, the heads of state and government of the Americas proclaimed that they would “make a special effort to guarantee the human rights of all migrants, including migrant workers and their families.”

4. The states also undertook to take steps to mitigate the particular vulnerability of this segment of the population. They include, notably: (i) seeking full compliance with, and protection of, the human rights of all migrant workers; (ii) adopting concrete measures to eradicate all forms of discrimination against them; (iii) preventing abuse and/or mistreatment of migrant workers by unscrupulous employers; and (iv) providing the same legal protection for their labor rights as for workers who are nationals of the country in which they work. As to the activities of the Special Rapporteur, the states said that “(the governments will) support the activities of the Inter-American Commission on Human Rights with regard to the protection of the rights of migrant workers and their families, particularly through the Special Rapporteur for Migrant Workers.”

5. In light of the states’ goals for promoting the rights of migrant workers and their families, the Special Rapporteurship on Migrant Workers of the IACHR set itself several objectives. These include: a) generating awareness of the duty of states to respect the human rights of migrant workers and their families; b) making specific recommendations to member states on areas related to protecting and promoting the human rights of migrant workers and their families; c) preparing specialized reports and studies on the matter; and, d) acting promptly on petitions and communications citing violation of the rights of migrant workers and members of their families in an OAS member state.

6. During its 120^th regular session, in March 2004, the IACHR designated Venezuelan attorney Freddy Gutiérrez Trejos, as Special Rapporteur for Migrant Workers and Their Families. To carry out his task, the Rapporteur received support from the Executive Secretariat of the IACHR and a small team of coworkers. Commissioner Gutiérrez replaced Argentinean jurist Professor Juan E. Méndez, who had been the IACHR’s Special Rapporteur for Migrant Workers and Their Families for almost four years.

7. The heads of state and government of the Americas welcomed the IACHR initiative of establishing a Special Rapporteurship on Migrant Workers and Their Families and in the Plans of Action of the Second and Third Summits of the Americas expressed interest in boosting efforts to improve the status of migrant workers in the Americas. As a corollary, during the Third Summit, held in Quebec City, Canada, in 2001, the highest authorities of the Americas conferred a special mandate on the OAS to establish:

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

8. Unfortunately, despite the interest expressed by the states in several declarations, the work of the Rapporteurship has been negatively affected by the lack of financial support on the part of OAS member states. Some of the activities the Rapporteurship needs to carry out as part of its mandate have suffered as a result. To date, the activities of the Special Rapporteurship have been carried out thanks to a small contribution from the general fund of the OAS, contributions from the Government of Mexico, and support from the Ford Foundation. Even though the above-noted contributions have enabled the team to continue its work, the Rapporteurship urgently needs additional, financial contributions. It is important to highlight the fact that, as a result of its work and of the interest shown by states and civil society organizations, there has been a substantial increase over the past year in the volume of work carried out by the Rapporteurship. The Rapporteur regrets, however, that the interest expressed by many states and organizations has not so far translated into concrete financial or logistical support.

9. The IACHR has considered it necessary to produce annual progress reports on different aspects of the issues involving migrant workers from a human rights-based perspective.[2] This approach has been chosen instead of presenting a single report on the situation of migrant workers in the Americas, since such a report would be difficult to produce, considering the scale and complexity of the topic and the resources available to the IACHR. Furthermore, migration is a dynamic phenomenon that cannot be captured in a one-off, definitive analysis. The report we present below has been prepared in that spirit of ongoing observation of an evolving phenomenon. It addresses key aspects of the situation of migrant workers in the Americas.

10. This report does not attempt to achieve an exhaustive discussion of the subject, but rather to present material and background on issues of importance for the status of migrants in the region. This report is divided into four parts. The first refers to the main activities of the Rapporteurship in 2004. The second part provides a brief overview of key events in the area of migration and human rights last year. The third part examines the case law of the Inter-American system organs for the protection of human rights (the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights) in 2004 on issues related to migrant workers and their families and other migration-related topics. The fourth and last section looks at the situation of migrant farm workers in the Americas.

II. MAIN ACTIVITIES OF THE RAPPORTEURSHIP IN 2004

11. Under the mandate conferred by the IACHR, the Rapporteurship undertook a series of activities in 2004. They included: (a) monitoring the general situation of migrant workers and their families in the Americas; (b) research with a view to preparing the annual report, as well as conducting special studies and providing assistance with conferences and fora on migration; (c) developing institutional ties with inter-governmental and civil society organizations working on behalf of migrant workers and their families in the Americas; (d) participating in discussions on the admissibility of cases and on the granting of precautionary measures in cases involving the human rights of migrant workers; (e) seeking funds to finance the Rapporteurship; and (f) participating in the Working Group to Draft an Inter-American Program for the Promotion and Protection of the Human Rights of Migrants.

12. In relation to the work of monitoring the conditions of migrant workers and their families, the Rapporteurship, as is its custom, continued to follow developments in relation to migration in the region. As reiterated in previous reports, observation and monitoring are vital to the work of the Rapporteurship, since they make it possible to learn more about the human rights situation of migrant workers and their families in the Americas. With that goal in mind, members of the Rapporteur’s team kept close track of policy debates and changes in migration legislation and control taking place in the region. The Rapporteurship also followed developments in other key areas, such as illicit smuggling of migrants and the impact of certain political and economic crises on migratory flows in the region. In that latter connection, the Rapporteurship has monitored with special interest the migratory repercussions of the economic and political crises that have affected or continue to affect certain countries of the region. Thus, much attention was paid to developments in two important receiving countries: the migration regulations introduced by Venezuela and the promulgation of Argentina’s new migration law (No. 25.8719), which was passed in December 2003. Likewise, the Rapporteurship monitored major developments in the area of migration in countries of the region undergoing political and economic instability that have prompted substantial migratory movements.

13. The Rapporteur’s team also investigated several issues related to the situation of migrant workers. First, it continued its long-term project of gathering information on comparative migration law in the Americas. In the meantime, Section IV of this annual report presents a study on the status of agricultural migrant workers in the region: a particularly vulnerable subgroup of the migrant population. It is important to underscore that the Rapporteurship maintains extensive contact with a number of non-governmental organizations and academic research institutions, which provide relevant information on the overall status of migrant workers and their families, as well as on special interest cases.

14. At the same time, the Rapporteurship has kept close tabs on discussions related to migration law and practices in OAS member states. As it has stated on previous occasions, the Rapporteurship notes with concern how security considerations in American states may affect the status of migrant workers and their families in the region. This trend can be observed in the increased number of deportations of migrant workers and their families and in the interdiction on the high seas of vessels transporting undocumented migrant workers. As on previous occasions, the Rapporteurship recognizes the sovereign right of states to regulate the entry and stay of persons on their territory, by virtue of the principle of sovereignty, a mainstay of international relations between states. While acknowledging this inalienable right of states, the Rapporteurship insists that such regulation must be carried out in an orderly fashion and in accordance with the international standards of due process currently in force and embodied in international human rights law.

15. With a view to fulfilling its human rights mandate, the Rapporteurship participated last year in several promotional activities of various institutions, including civil society organizations and research centers concerned with human rights and migration. In July, representatives of the Rapporteur’s office traveled to San José, Costa Rica, to take part in the second stage of the seminar entitled “Toward a Regional Strategy for the Protection and Promotion of the Rights of Migrant Populations,” organized by the Inter-American Institute of Human Rights (IIHR). The purpose of this second part of the seminar was to provide training for Ombudsman’s offices in various countries in the region. This seminar focused on the work and challenges facing Ombudsmen in Central America. Topics discussed included: designing strategies for dealing with the subject of migration from a human rights perspective, above all in connection with steps that Ombudsman’s offices may take to assist this population, as well as strategies for producing a comprehensive diagnostic assessment of the principal problems affecting the migrant population in Central America. Representatives of the Rapporteur’s Office offered a workshop on the situation of migrant workers in the region and on the IACHR’s efforts to protect and promote the fundamental rights of this population.

16. In June, the Special Rapporteur, Freddy Gutiérrez, traveled to Geneva, Switzerland, to attend the ninety-second Annual Conference of the International Labour Organization (ILO), held on June 1-17. Nearly 3,000 delegates attended the meeting, including Heads of State, labor ministers, trade union leaders, and business sector representatives from the 177 member states of the ILO, which was founded in 1919. During his stay in Geneva, Rapporteur Gutiérrez held talks with government representatives, intergovernmental institutions, and civil society organizations working on migration and/or labor issues. During these informal meetings, Mr. Gutiérrez discussed the labor problems and challenges faced by migrant workers in the Americas.

17. In August, representatives of the Rapporteur’s Office took part in a meeting of experts in San José, Costa Rica, sponsored by the IIHR, to discuss the Institute’s future role with regard to migration in the region. Attending the meeting were academics and scholars doing research into migration issues, government officials performing functions related to migration, representatives of human rights organizations and of grassroots organizations working on behalf of migrant workers and other migrants. Participants in the meeting discussed possible strategies for promoting respect for the fundamental rights of migrant workers and their families in such areas as migration flow management, working conditions, access to social services, detention conditions, and smuggling and trafficking of persons, among others. In addition to discussing the situation and overall human rights issues facing migrants, the meeting examined how, by virtue of its mandate, the IIHR might contribute to improving the situation of this vulnerable population. Representatives of the Rapporteur’s Office explained the work of the IACHR to protect and promote the fundamental rights of this population and put forward ideas as to how the IIHR might develop its work of promoting the rights of migrants in the region.

18. From October 7-9, representatives of the Rapporteur’s Office took part in the annual meeting of the Latin American Studies Association, held in Las Vegas. In the course of the conference, they participated in panel discussions and meetings describing the latest research into migration in the Americas. They met with specialists on the subject of migration and civil society representatives working in projects, in order to familiarize themselves with their work and to discuss future strategies for strengthening the work done by the IACHR to promote human rights in connection with migrant workers and their families.

19. In November, two members of the Rapporteurship team participated in the third and last meeting of the Activist Fellows Roundtable on human rights and migration, sponsored by the University of Chicago. That interesting event attracted academics, activists, and members of intergovernmental and non-governmental organizations in Mexico, the United States, Guatemala, and El Salvador dedicated to migration and human rights-related issues. The IACHR representatives described the work of the Rapporteurship over the past year and addressed future challenges for promoting exchanges between academics and civil society representatives.

20. The IACHR continued to explore the possibility of participating as an observer at future meetings of the South American Conference on Migration. This multilateral forum on migration issues is attended by 10 countries in South America: Argentina, Bolivia, Brazil, Colombia, Chile, Ecuador, Paraguay, Peru, Uruguay, and Venezuela. The Rapporteurship’s attendance at such intergovernmental meetings is indeed crucial, since it allows it, among other things, to keep close track of technical discussions on migration control and cooperation mechanisms in the region. Worth noting, too, is the IACHR’s participation as an observer in the Regional Conference on Migration. This multilateral forum was established in 1996 to address the challenges posed by international migration in the region. Eleven countries currently take part as RCM members (Belize, Canada, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, and the United States), with another five countries participating as observers (Argentina, Colombia, Ecuador, Jamaica, and Peru). The IACHR has been an observer in this important multilateral forum since 2000. Unfortunately, in 2004, budget constraints prevented the Special Rapporteurship from attending the Ninth Meeting of the Regional Meeting on Migration, held in Panama City on May 20-21.

21. During 2004, the Rapporteurship played an active part in the Working Group to prepare an Inter-American Program for the Promotion and Protection of the Human Rights of Migrants, including Migrant Workers and Their Families, organized by the Committee on Juridical and Political Affairs (CAJP) of the OAS. This Working Group has taken upon itself the task of drafting a new version of the Inter-American Program. It is important to note that this Program was fostered by the heads of state and government of the Americas. Accordingly, the Summits of the Americas process decided to pay special attention to the subject of migration and to undertake special actions to safeguard the human rights of migrants. Thus, at the Second Summit of the Americas, held in Santiago, Chile, in 1998, the heads of state and government of the countries participating in the process expressed their desire to make special efforts to guarantee the human rights of all men and women migrants, including migrant workers and their families. At the Third Summit of the Americas, held in Quebec City, Canada, in 2001, the heads of state and government agreed in their Plan of Action to establish “an inter-American Program within the OAS for the promotion and protection of the human rights of migrants, including migrant workers and their families, taking into account the activities of the IACHR and supporting the work of the IACHR Special Rapporteur on Migrant Workers and the UN Special Rapporteur on Migration.” This initiative was subsequently backed by resolution AG/RES. 1898 (XXXII-O/02) at the thirty-second regular session of the OAS General Assembly, held in Barbados in June 2002, which instructed the OAS Permanent Council to continue preparing the Inter-American Program for the Promotion of the Human Rights of Migrants, with the assistance of the Inter-American Commission on Human Rights (IACHR) and the International Organization for Migration (IOM), with a view to implementing the mandate of the Summits. The establishment of the Program echoes the concern of states in the region – countries of origin, transit countries, and receiving countries – to adopt concrete measures to guarantee the protection and well-being of migrants.

22. To comply with part of the mandate conferred on the IACHR, the team at the Office of the Rapporteur worked in 2002 under the supervision of former Special Rapporteur and IACHR Commission, Juan E. Méndez, to produce a Draft Program, which was approved by the plenary of the Committee in December that year. After it had been presented for adoption at the thirty-third regular session of the OAS General Assembly, held in Santiago, Chile, in June 2003, the member states of the OAS instructed the Working Group of the CAJP to continue working on the draft with a view to submitting a revised version for adoption by the member states of the OAS. In 2004, the Rapporteurship has attended meetings and proffered ample technical advice to the CAJP’s Working Group, chaired by Argentina. In April and in October, the Special Rapporteur presented the draft prepared by the IACHR to the Working Group in charge of preparing an Inter-American Program for the Promotion and Protection of the Human Rights of Migrants, including Migrant Workers and Their Families. Furthermore, in their capacity as experts on migration and human rights and with a view to assisting with the drafting of a second version of the aforementioned Program, members of the Rapporteur’s team took part in working sessions of the CAJP’s Working Group and wrote specialized papers.

23. In 2004, the Rapporteur’s Office attended two special hearings of the IACHR on the overall situation of migrant workers and other migrants in the Americas. At the 120^th regular session period held in March 2004, the Mexican Organization Sin Fronteras gave a detailed presentation on the subject. Likewise, at the last regular session, held in October 2004, a consortium of organizations, comprising Observatorio Interamericano de Migrantes (Inter-American Observatory for Migrants’ Rights) and Plataforma Interamericana de Derechos Humanos y Democracia y Desarrollo (Inter-American Platform for Human Rights, Democracy and Development), also gave a presentation on the situation of migrant workers and other migrants in the region. The fact that two specialized hearings were held on this subject in 2004 testifies to the growing importance, over the past few years, of the human rights situation of migrant workers and their families in the region. Those hearings enabled Commissioners to enhance their understanding of specific aspects of the human rights situation of migrant workers and their families in the Americas.

24. The Rapporteur’s Office also participated, as it usually does, in discussions regarding the admissibility of petitions and granting of precautionary measures in cases relating to the human rights of migrant workers and their families. The idea, here, was to assist the work of the attorneys in the Executive Secretariat.

25. Finally, the Rapporteur and his team, together with the Executive Secretariat, strove to gather funds so as to be able to continue the Rapporteurship’s work. Potential contributors were identified and specific new fundraising projects undertaken. Unfortunately, despite various declarations by states of their interest in addressing the subject of migration, the work of the Rapporteurship has dwindled for lack of financial support. Accordingly, the lack of adequate financial support from member states of the OAS has prevented the Rapporteur’s Office from carrying out some of the promotional activities required by its mandate. So far, the Special Rapporteurship’s activities have been carried out thanks to a small contribution from the OAS regular fund, contributions from Mexico, and, more recently, support from the Ford Foundation. While these contributions provided some financial relief, the Rapporteurship needs further concrete financial contributions in order to be able to continue its important work.

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[1] The “Declaration of Montruois: A New Vision of the OAS”, adopted by the General Assembly in Haiti in 1995, states that increasing interdependence and economic integration require that the question of migrant workers and their families be addressed on the basis of solidarity among member states and with full respect for the dignity and rights of such persons.

[2] IACHR, Annual Reports, 1999, 2000, and 2001, section on migrant workers. See <http://www.cidh.org>.