III.      GENERAL OVERVIEW OF THE POLICIES AND PRACTICES RELATING TO THE HUMAN RIGHTS OF MIGRANT WORKERS AND THEIR FAMILIES

26.  Throughout 2004, the Rapporteurship for Migrant Workers monitored all policies and practices that impact on the protection and guarantee of the human rights of migrant workers and their families in the Americas.  The Rapporteurship also studied migration-related developments worldwide in order to assess their impact in the region. The purpose of this monitoring work is to increase understanding of the migration phenomenon and so improve the advocacy work carried out by the IACHR on the migration issue.

27.  This chapter of the annual report provides a succinct overview of those policies and practices considered by the Rapporteurship to be important because of their impact on the human rights of migrant workers and their families. This overview covers 2004. In some cases, however, information is mentioned that refers to earlier periods because it was disseminated in the course of this year.

International Instruments and Initiatives

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

28.  In 2004, three countries, Turkey, Libya, and East Timor, ratified the International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families. This brings to 27 the number of States Parties that have ratified the Convention that came into effect on April 1, 2003. Two countries in the Americas, Peru and Argentina, signed the Convention with a view to ratifying it in the future. Five member states of the OAS have ratified the convention: Belize, Bolivia, Colombia, Mexico, and Uruguay. In addition, in March 2004, the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, held its first meeting. This Committee comprises 10 specialists, whose work is to monitor compliance by States Parties with the provisions of the Convention. The members of the committee are: Francisco Alba (Mexico); José Brilantes (Philippines); Francisco Carrión-Mena (Ecuador); Ana Elizabeth Cubias Medina (El Salvador); Ana María Diéguez (Guatemala); Ahmed Hassan El-Borai (Egypt); Abdelhamid El Jamri (Morocco); Arthur Shatto Gakwandi (Uganda); Prasad Kariyawasan (Sri Lanka); and Azad Taghizadet (Azerbaijan).

Committee Against Torture

29.  The Committee against Torture, the body charged with monitoring observance of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, pronounced judgment against Canada in two cases concerning the treatment of Mexicans. In the first case, an application against Canada to the Committee regarding Mexican citizen Enrique Falcón Ríos (CAT/C/33/D/133/1999, December 17, 2004), the Committee found the State responsible for violating Article 3 of the Convention that prohibits the expulsion or extradition of a person to another State when there are substantial grounds for believing that he would be in danger of being subjected to torture. In a second case concerning Article 3 of the same Convention and in connection with Mexican citizens Meli Arfaha Saut Villamar and Flor Osorio (CAT/C/33/d/163/2000/Rev.1, December 17, 2004), the Committee declared the petition inadmissible.

The Geneva Migration Group

30.  In early 2004, the United Nations launched an initiative called the Geneva Migration Group. This group brings together the directors of six important international agencies committed to upholding and protecting universal values and who share many objectives and areas of work on the issue of migration. The main objective of this initiative is to promote good governance and best practice in relation to migration by promoting a wider application of relevant international and regional instruments relating to the regulation and management of migration. The program also aims to enhance the effectiveness of the policies designed by the international community to manage the migration phenomenon in order to ensure that migration benefits individuals as much as States. The group has established a variety of objectives, one of which is to exchange information in order to improve understanding of the issue. The participants in this Group are: Ruud Lubbers, Office of the United Nations High Commissioner on Refugees (UNHCR); Antonio María Costa, Office of the United Nations Office on Drugs and Crime (UNODC); Brunson McKinley, International Organization for Migration (IOM); Louise Arbour, Office of the United Nations High Commissioner on Human Rights (UNCHR); Rubens Ricupero, United Nations Conference on Trade and Development (UNCTAD); and Juan Somavía, International Labour Organization (ILO).

The Visit to Peru of the UN Special Rapporteur on the Human Rights of Migrants

31.  Gabriela Rodríguez, UN Special Rapporteur on the Human Rights of Migrants, visited Peru between September 20-30, 2004. The purpose of the visit was to examine the nature of migration in the country and to observe the problems and challenges faced by Peru in this context. A further purpose of the visit was to inform the international community regarding the policies adopted by the government of Peru for protecting migrants in the country as well as Peruvian nationals living abroad.

Observations for Ecuador from the Committee on Economic, Social and Cultural Rights

32.  As part of its observations on the implementation of the International Covenant on Economic, Social and Cultural Rights, the Committee on Economic, Social and Cultural Rights which is the body responsible for monitoring compliance with the covenant, requested Ecuador to present information regarding its program for the development of Ecuadorian Migrants and their Families, to implement the recommendations made by Gabriela Rodríguez, UN Special Rapporteur on the Human Rights of Migrants who visited Ecuador in November 2001, and to take all appropriate steps to combat the trafficking of minors.

South American Conference on Migration

33.  Representatives of the governments of Argentina, Bolivia, Brazil, Colombia, Chile, Ecuador, Paraguay, Peru, Uruguay, and Venezuela took part in the Fifth Meeting of the South American Conference on Migration (SACM). This took place on November 25 and 26, 2004, in the city of La Paz, Bolivia. The meeting continued the work of the multilateral forum set up during the South American Meeting on Migration, Integration and Development that took place in Lima, Peru, in 1999 and subsequently developed in the conferences in Buenos Aires (2000), Santiago de Chile (2001), Quito (2002), and Montevideo (2003). During the last meeting, representatives from these eight South American countries exchanged ideas and information on migration in South America. Following a restructuring of the Plan of Action of the Conference, they also adopted a Final Declaration called “Declaration of La Paz”.[3]

The MERCOSUR Specialized Forum on Migration

34.  Ministers from the four member states of MERCOSUR, and their associate countries, Bolivia, Chile, and Peru, set up the Specialized Forum on Migration of MERCOSUR and Associate Countries (Bolivia, Chile, and Peru), and approved its rules of procedure. The purpose of this forum is to provide a space for discussions on the migration issue within the region. As part of this work, a special meeting of ministers of the interior from Argentina, Brazil, Paraguay, Uruguay, Bolivia, Chile, and Peru was held in May 2004, to discuss the measures needed to confront the problems encountered at a regional level with regard to migration.

International Court of Justice

35.  In March 2004, the International Court of Justice (ICJ) found against the United States in the case of Avena and other Mexican citizens (Mexico vs. United States), with regard to the situation of 54 Mexicans who were tried, sentenced, and condemned to death in the United States without having been informed of their right to contact Mexican consular officers in accordance with the terms of the 1961 Vienna Convention on Consular Relations. Mexico argued that the lack of access by the accused to Mexican consular officers violated the right to due process of their nationals. In its finding, the ICJ instructed the United States to carry out a judicial review of the sentences. In a preliminary finding, the ICJ had already instructed the United States to suspend the sentences of three of the 54 condemned, the date of whose executions was imminent, until after the Court’s final judgment. Subsequently, in December 2004, the U.S. Supreme Court accepted an appeal by José Ernesto Medellín, a Mexican citizen condemned to death in Texas. Medellín is one of the petitioners in the case Mexico vs. United States before the ICJ [Medellín vs. Dretke (No. 04-5928)].

Anniversary of the Cartagena Declaration

36.  Latin American countries commemorated the twentieth anniversary of the Cartagena Declaration on Refugees (1984) by holding a meeting in Cartagena, Colombia. The Declaration of Cartagena provides an innovative approach to protecting refugees by enlarging the concept of refugee as defined in the Convention relating to the Status of Refugees (1951) and its Protocols (1967), to more accurately reflect the situation in Latin America. At the end of the meeting, representatives from 18 countries reasserted their solemn commitment to protect those who seek asylum in Latin America.  We should recall that aspects of the Convention relating to the Status of Refugees (1951), and its Protocols (1967) such as the prohibition of return (“non-refoulement”), are included among the minimum conditions of due process proposed by the Special Rapporteurship on Migrant Workers and Their Families of the IACHR (see chapter 5, Annual Report 2000).

Migration Conferences

37.  The Ninth Meeting of the Regional Conference on Migration was held in Panama City on May 20 and 21, 2004, with the participation of delegations from the following countries: Belize; Canada; Costa Rica; El Salvador; United States of America; Guatemala; Honduras; Mexico; Nicaragua; Panama; and Dominican Republic. The delegations studied the different aspects of the migration phenomenon and reaffirmed the need for this forum to continue its important work. The Fifth Meeting of the South American Conference on Migration was also held on November 24 and 25, 2004, in La Paz, Bolivia. Delegates from Argentina, Bolivia, Brazil, Colombia, Chile, Ecuador, Paraguay, Peru, Uruguay, and Venezuela discussed different aspects of the migration issue in South America.

Migration Initiatives within the framework of the OAS

Inter-American Program for the Development and Protection of the Human Rights of Migrants

38.  During its thirty-fourth regular session in Quito, Ecuador, in June 2004, the General Assembly of the OAS agreed to renew its mandate to the Working Group of the Commission on Juridical and Political Affairs (CAJP) to produce an inter-American program for the Promotion and Protection of the Human Rights of Migrants. Argentina remains in the chair of the Working Group. The IACHR plays an active role in this process by providing technical assistance to the CAJP through the Special Rapporteurship on Migrant Workers and Their Families.

Suppressing Trafficking in Persons

39.  During its thirty-fourth regular session, the General Assembly of the OAS recommended that as mandated by resolution AG/RES 1948 (XXXIII 0/03) the Secretary General of the Organization should name a Coordinator in the OAS to be responsible for the subject of Trafficking in Persons. The person so designated was Phillip Linderman, an American diplomat who previously worked in the State Department’s Office to Monitor and Combat Trafficking in Persons.

Migration Flows and Development

Migration from Ecuador

40.  Studies show that between 2000 and 2004, around 250,000 Ecuadorians tried to enter the United States to seek work without valid documentation. Most of them made the journey by sea, traveling to Guatemala or Mexico in fishing boats, and from there traveling by land to the US border. The migrants are usually taken by smugglers or traffickers in groups of up to 200 people. The cost of the journey varies between US$10,000-12,000: this cost is broken down into USS$2,000 for the cost of the boat journey, US$800 for crossing Guatemala, US$2,000 for crossing Mexico, and finally US$5,000 for getting into the United States.

Migration from the Dominican Republic

41.  The current economic crisis in the Dominican Republic has increased the number of Dominican nationals who travel to the United States in search of work. Most try to enter the United States through Puerto Rico. Between January and October 2004, around 7,000 Dominicans were intercepted by the United States Coast Guard Service in the La Mona strait, a 75-kilometer-wide stretch of sea between the island of Hispaniola and Puerto Rico. This year, tens of people have drowned in this area. Another large but undetermined number of Dominicans tried to enter the United States across the Florida peninsula. In November 2004, 20 Dominican migrants who were traveling with 38 other people in a boat heading for Florida, drowned after the boat in which they were traveling sank because of bad weather. These journeys are organized by smugglers who charge between US$2,000-3,000 for the transport.

Colombians in Ecuador

42.  The Ecuadorian consulate in Ipiales, Colombia, estimates that since the year 2000, approximately 430,000 Colombian nationals have entered Ecuador without valid documentation.

Chileans Abroad

43.  A study carried out by the National Statistics Institute of Chile calculated that around 800,000 Chileans live abroad. As part of a plan to establish the exact number of people living abroad and to increase links with Chileans living abroad, the Chilean government established a process for registering their nationals abroad. According to the last adjusted figures, in 2002 there were around 50,000 Argentinians, 40,000 Peruvians, 11[Tr. sic.000?] Bolivians, and 10, [Tr. sic. 000?] Bolivians living in Chile, and the total number of foreigners in the country amounted to around 185,000 people.

Undocumented immigrants in the United States

44.  Around 7 million undocumented Latin Americans live in the United States, according to the Migration Policy Institute, a migration study center based in Washington D.C. This figure represents 80% of all the undocumented immigrants living in the country. Mexicans make up 57% of all the undocumented immigrants living in the United States, while the remaining Latin Americans as a group represent around 23%. Around half of the Mexicans living in the United States are in the country illegally.

The Haitian-Dominican border

45.  The Haitian organization Groupe d’Appui aux Repatriés et Réfugies (GARR) (Support Group for Refugees and Repatriated Persons) presented a study of the human rights situation on the border between the Dominican Republic and Haiti. The report highlights different issues that affect migrant workers and their families among which are migrant smuggling and person trafficking, arbitrary repatriations and/or expulsions, property destruction, forced labor, murders of and attacks on migrants, police corruption and falsification of immigration documents, and prison conditions for Haitians in Dominical detention centers near the border.

The Venezuelan-Colombian border

46.  The Colombian Minister of Defense, Jorge Alberto Uribe Echavarría, and his Venezuelan opposite number, General Jorge Luís García Carneiro, met in Caracas to review the security situation on the border between the two countries. This meeting came about as a result of a series of commitments entered into by both countries following a meeting between Presidents Alvaro Uribe and Hugo Chávez in Cartagena de las Indias in November.

US-Mexico Bilateral Commission

47.  The United States and Mexico held the 21^st Meeting of their Bilateral Commission. During the meeting in Mexico City at which US Secretary of State, Colin Powell, represented the United States, both countries agreed that migration was a high priority issue for relations between the two countries. One of the main subjects discussed at the meeting was the draft of an immigration agreement that would allow Mexican citizens to work in the United States on a temporary basis. Other areas of discussion included security on the border, and the program for migrant repatriation and care. In connection with the negotiations for a bilateral agreement on immigration, the Mexican President, Vicente Fox, stated that he hopes to complete an agreement on immigration with the United States before the end of his presidency in 2006.

Arrests of Undocumented Immigrants in the United States

48.  There were around 1.2 million of arrests of Mexican citizens who had entered the United States illegally during 2004. This is an increase of 9% on the previous year. The factors behind this increase include an increased demand for manpower in the United States as a result of the economic recovery and rapid growth in the US economy (4%), and proposals for a possible immigration amnesty for undocumented immigrants. The authorities reported that of all the undocumented immigrants arrested in the country, 95% were Mexican.

Deportations from the United States

49.  Between July and September 2004, Mexico and the United States entered into an agreement to transport by air the undocumented Mexican immigrants arrested in the Arizona desert.  The agreement, called the Lateral Repatriation Program (LRP), seeks to prevent the smuggling and deaths of migrants on the Arizona border. Following the agreement, any undocumented immigrants detained in the Arizona desert area were returned voluntarily to their places of origin on flights chartered from Tucson to Guadalajara and/or Mexico City, for onward transportation to their villages by bus. Any of those detained who lived in the north of Mexico were deported by land. The aim of the program was to prevent those deported from trying again to enter the United States illegally. Some 14,000 Mexicans were deported under this repatriation program. The program was financed by the United States and cost US$12 million.

Expedited Removal from the United States

50.  The US Department of Homeland Security announced that their 11,000 Frontier Patrol agents can remove within 14 days and without having to resort to a judge all undocumented immigrants arrested within 100 miles of the border. The Expedited Removal procedure will not apply to Mexican or Canadian nationals.

Immigration Services in the United States

51.  The US Citizenship and Immigration Service of the Department of Homeland Security in June 2004 reported that it would need at least two years to process the applications for citizenship, adjustment to and change of immigration status and employment authorizations already pending, which their own calculations put at 6.1 million.

Deaths on the US-Mexico Border

52.  According to the US Border Patrol, between 1998 and 2004, 1,954 people died trying to cross the border between Mexico and the United States. Last year, 325 people died. Most of the victims died from dehydration, hypothermia, and heart attacks caused by heat exposure. A significant number died in car accidents.

Remittances

53.  According to latest studies by the Inter-American Development Bank (IDB), remittances to Latin America in 2004 amounted to around US$30,000 million. This represents an increase of around 30% on total remittances to Latin American in 2001. Approximately six million Latin Americans living in the United States regularly send money to their countries. Most remittances are in the US$200-400 range. Another study calculates the total annual income of Latin American migrants at around US$450,000 million, which means the remittances represent 6.7% of the total incomes of migrants. According to the IDB, more than 50% of all the remittances to the region, some US$15,000 million, were remitted to Mexico. In 2003, the main sums remitted to countries in the region were US$13,200 million to Mexico, US$2,300 million to El Salvador, US$2,200 million to the Dominican Republic, US$2,000 million to Guatemala, US$1,400 million to Ecuador, US$1,400 million to Jamaica, and US$1,200 million to Cuba.

Free Trade Agreements

54.  On May 28, 2004, Robert Zoelick, the US Trade Representative, and the trade ministers of five countries in Central America, Costa Rica, Guatemala, Honduras, El Salvador, and Nicaragua, signed a free trade treaty. This treaty defines the specific rules that will regulate the access of goods to the market, the trade in services, the opening up of the public sector, as well as investments and intellectual property. The treaty establishes a timetable for a gradual reduction of tariffs, transitional protection, and tariff quotas for strategic or vulnerable goods. Previously, on March 15, 2004, the Dominican Republic signed a free trade agreement with the United States. These agreements are subject to ratification by the legislative authorities of the relevant countries – the treaty with the Dominican Republic was combined with the agreement signed with the five Central American countries for approval by the US Congress. Canada and Central America are also currently negotiating a free trade agreement similar to that signed between the United States and the Central American countries in May. None of these free trade agreements contains clauses covering management of migration flows.

Trafficking in Persons and Smuggling of Migrants

The scale of the problem

55.  The US Bureau of Immigration and Customs reported that smuggling of migrants and trafficking in persons involved up to 17,500 foreigners in 2004, and generates an estimated annual US$9,500 million. The authorities state that the price of helping a Mexican get into the United States illegally (smuggling of migrants) costs between US$1,500-2000, while for a Central American, the cost varies between US$3, -6,000.

Arrests in Mexico

56.  In March 2004, the Mexican authorities arrested 44 people accused of trafficking in persons. Of those detained, 32 worked for the National Immigration Institute. Those arrested were accused of being part of a clandestine network that trafficked people of all nationalities into the United States.

Migration Legislation

New Law in Argentina

57.  As reported in our last Annual Report, the Argentine Congress passed a new Migrations Act (Law 25,871) in December 2003. This replaced the so-called Videla Law on migration that had been drawn up by the Argentine military government (1976-1983) and was considered out of date and restrictive. The new legislation guarantees the right of all migrants to basic health services and education, regardless of their migratory status and sets out guarantees for the treatment of migrants undergoing immigration procedures. The law also repeals a clause in a previous law that obliged state officials to report the presence of foreign illegal immigrants to the authorities. However, the text of the new law has not yet been approved.

Administrative Emergency in Argentina

58.  On July 7, 2004, the President of Argentina, Néstor Kirchner, by presidential decree (No. 836), declared an administrative emergency in – and six-month intervention of -- the National Office of Migration because of the congestion and delays in applications for cases pending, and alleged irregularities.

New Immigration Law in Venezuela

59.  In May 2004, Venezuela passed a new Immigration and Foreign Nationals Law. This law repealed others that had been in force since 1837 and established a system for registering the admission, entry, stay, registration, monitoring and entry and exit information of foreign nationals. The law also incorporates the recent approval of special laws for border security areas, and for monitoring and naturalizing foreign nationals already in the country. This law has made it possible to naturalize one million people who were living illegally in Venezuela.

Immigration Reform in the United States

60.  In April 2004, the President of the United States, George Bush, put forward a draft immigration law. The new plan, called Fair and Secure Immigration Reform seeks to match foreign workers with US businesses willing to offer them work. The beneficiaries would receive a temporary three-year working visa as long as they have a job or the offer of one. The program does not contemplate mechanisms for facilitating permanent residence or citizenship for those beneficiaries.

The 9/ll Committee

61.  The final report of the 9/ll Commission, a bipartisan commission charged with investigating the terrorist attacks on the United States on September 11, 2001, recommended a number of immigration reforms in order to enhance US security. Among these proposals, the committee recommended strengthening border controls, using the latest technology to integrate the systems for issuing and monitoring travel documentation such as visas and passports, and standardizing monitoring systems for all those entering the country at all ports of entry, security points, and in some cases, on external borders.

Natural Disasters

62.  The traditional hurricane season in the Caribbean and the Gulf of Mexico caused enormous damage in 2004, not only in terms of human lives but also in terms of the destruction of infrastructure. The economic impact of these disasters and the destruction they left behind may, in the short term, increase the migration pressure that already exists in the Caribbean. During September 2004, Florida and many Caribbean islands suffered the consequences of several hurricanes. One thousand five hundred people died in Haiti and thousands were left homeless because of the torrential rains and flooding in the north of the country that also flooded several large towns and caused considerable infrastructure damage. The Dominican Republic was also affected by the rains: 11 people died and hundreds of families were affected. Jamaica, the Cayman Islands and above all, Grenada, suffered serious damage as a result of Hurricane Ivan.

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