V.      MIGRANT FARM WORKERS IN THE AMERICAS

Introduction

94.  Academics and human rights organizations, such as the Inter-American Commission on Human Rights (IACHR), dedicated to protecting and supporting migrant workers, have shown that, as a group, migrant workers and their families are especially vulnerable to serious violations of their human rights. Because of the nature of their situation, immigrants and migrant workers are often unfamiliar with the both the laws and language of the country of destination, and are often faced with outright hostility from that country’s inhabitants, and even from its authorities. The situation is particularly acute for undocumented migrants, because their migratory state makes them even more vulnerable to violations of their fundamental rights. Because of the particular nature of their situation, migrant workers as a group are considered to be structurally vulnerable.[9]

95.  Migrant workers and their families regularly fall victim to numerous violations of their human rights. These may include: arbitrary arrest and violations of due process; mass deportations; discrimination when applying for citizenship or seeking access to social services to which foreigners are entitled by law; sub-human conditions of detention; unlawful coercion by authorities such as police and immigration officials; and a total lack of protection when exposed to exploitation by unscrupulous employers. The situations described above affect migrant women and children particularly seriously because these groups are exposed to additional human rights violations such as sexual abuse and harassment, and discrimination.[10]

96.  Just as women and children are particularly vulnerable groups within an already vulnerable population, migrant farm workers are, by the nature of their work, particularly exposed to serious abuse. Because of their situation and large numbers in several of the member states of the Organization of American States (OAS), the Rapporteurship decided to dedicate a special chapter in its annual report to describe the situation of this subgroup of migrant workers.

97.  The Rapporteurship decided to address the situation of migrant farm workers in order to throw some light on the conditions experienced by this group of workers. This issue is important because of the great number of migrant workers who are engaged in different aspects of farm work in many of the member states of the OAS. The Rapporteurship is not attempting to carry out an exhaustive survey of the issue but merely to introduce the subject with a view to describing the situation of these people and making the authorities, non-governmental organizations, civil society organizations, and public opinion, aware of their suffering. Furthermore, this section sets out to describe the main characteristics of this phenomenon and to establish the consequences for the states in the region in terms of their obligation to protect and guarantee the basic human rights of all those under their jurisdiction.

98.  The following chapter starts with a brief description of the phenomenon of migrant farm workers. Having described the specific conditions of vulnerability of this sector of the population, it goes on to describe the migratory flows of farm workers in the Americas. It then reviews the legal framework for the protection of these people’s human rights. The final section consists of conclusions and observations.

Patterns in the Mistreatment of Migrant Farm Workers

99.  As stated in the introduction, migrant farm workers as a social group are particularly vulnerable. Farm workers, in general, whether foreign or national, with or without documents, experience a different labor regime than urban workers, in that their salaries are usually below the legal minimum wage, and regulations regarding the working day and social benefits are not respected. Work in the agricultural sector is usually seasonal, defined by cycles linked to the need to sow, manage and, above all, harvest, the crops. The actual work required varies, of course, from crop to crop. By its nature, farm work is labor-intensive. The work is usually difficult: farm workers usually spend long hours exposed to all kinds of weather; their work can be physically exhausting, tedious and even dangerous or harmful to health. However, in addition to the difficult conditions that are inherent to their work, migrant farm workers often experience the systematic violation of their basic rights. These basic human rights include:

1.       Labor Rights

100.        The violation of labor rights is one of the worst aspects of the conditions experienced by migrant farm workers. It particularly affects undocumented workers. Migrant farm workers often have to endure very difficult conditions. Their working day is long, sometimes 12-13 hours long, with only short breaks. During harvest time, the working day might be as long as 18 hours a day, seven days a week.[11] Farm work is demanding in physical terms and workers are obliged to endure inclement weather conditions such as rain, intense cold or heat. Employers often pay low wages, beneath the legal minimum, and sometimes withhold from the workers’ wages significant sums towards board and lodging. The agents or intermediaries who provide the link between the workers and the employers often demand a percentage of the farm worker’s wages.[12]

101.        Furthermore, as a result of the type of work they do, migrant farm workers often fall ill. Some of these illnesses or conditions are curable, such as the effects of sunstroke or chills. More serious are those that are linked to the use of pesticides or other chemicals used in the agricultural process. Poisoning from inappropriate use of agricultural chemicals can lead to death or seriously damage a person’s health. According to one study, every year, around 300,000 farm workers are poisoned by pesticides in California.[13] Farm workers also run the risk of suffering chronic muscular/skeletal injury, often in their backs, legs or neck, resulting from the rigorous nature of their work. Accidents caused by using machines or equipment such as saws or blades, knives, tractors and other vehicles, are also frequent. Some of these illnesses and/or injuries may have long term consequences and lead to permanent incapacity, and so prevent those affected from continuing to support their families. The exposure to these risks, combined with the lack of labor protection or access to health services, all contribute to leaving these workers unprotected. It is not surprising, therefore, that many studies show that migrant farm workers tend to develop a range of psychological problems.[14]

102.        Migrant workers rarely achieve other labor entitlements such as days off, overtime pay, vacations, work accident insurance, social or other benefits. The lack of protection for, and guarantee of these rights is often exacerbated by employers infringing the farm workers’ rights of association. Farm workers are often unable to organize themselves or set up unions to demand their rights and try to put a stop to the abusive practices of their employers. The seasonal nature of farm work means that employers terminate their links with workers once the harvest is in and packed ready for distribution. Furthermore, the existence of intermediaries and the short periods that these workers work for the same employer usually make it impossible for them to enjoy their right of association. As previous reports of the Rapporteurship have pointed out, the nature of these labor ties makes it difficult for migrant farm workers to confront mistreatment by employers.[15]

103.        The already acute vulnerability of migrant farm workers is worse in the case of women, children, and indigenous persons. Throughout the Americas, minors work in the farming sector as migrant laborers. Like children, women also experience serious violations of their basic human rights. It is worth re-emphasizing that States are obliged to protect children and minors from economic exploitation, from carrying out dangerous work and to prevent conditions that stunt their intellectual and physical development.[16] In addition to the dire conditions described above, women and minors are often the victims of sexual abuse and violence, and of violations to their reproductive rights. The same happens with indigenous women whose situation – unfamiliarity with the law, language, and customs of destination countries – increases their vulnerability to discrimination and abuse.

104.        Finally, the basic rights of migrant farm workers are violated when States are either unable or simply unwilling to assume their responsibility to guarantee the human rights of those living within their jurisdiction. The authorities’ reluctance to take the concrete steps necessary to prevent abuse by employers clearly infringes the human rights of migrant farm workers.

2.       Other Economic and Social Rights

105.        Migrant farm workers and their families usually live in poverty in their communities of origin and this is what often pushes them to seek alternative means of survival for them and their families. The lack of work, social investment, or economic opportunity in many countries of origin is what forces these people to migrate. Migration is often part of a family’s income diversification strategy, as some members of the family migrate (usually the men and young women), while others remain in their communities of origin to look after the children and old people.[17]

106.        Furthermore, migrant farm workers and their families, above all those who are undocumented, rarely have access to social security or medical care. Access of children of migrant farm workers to the state education system in the destination country varies according to the laws and practices of each State. There have been many cases where these children have not been accepted into state schools. At the same time, in some large countries, a significant number of migrant farm workers have no fixed abode and move according to the cycle of harvests. This has repercussions for the stability of the family and makes it more difficult for the children of such families to enter the educational system.[18]

3.       Trafficking in Persons

107.        As in other sectors involving migrant workers, there have been cases of person trafficking among migrant farm workers in the Americas. According to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, trafficking in persons is defined as follows: “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”[19]

108.        Although there is no reliable information concerning the exact number of migrant farm workers who fall victim to trafficking, we do know that the practice occurs regularly in the Americas. The victims of trafficking are tricked by criminals: representatives of criminal mafias, often people of respectable appearance who pass themselves off as businessmen, make contact with the victims, and offer them work in a country of destination. The victims agree to travel to the country of destination without papers. Once a person has agreed to the terms, the operation swings into action: the traffickers smuggle the workers into the country of destination and once there, keep them locked up, take away their travel documents if these are legitimate, and force them into farm work. These bands force the victims to pay for the services they have received, (i.e. the cost of transport or the maneuvers for getting them into the country of destination) in return for working in semi-slavery. The traffickers take advantage of the fact that the victims do not know their rights, and they exploit cultural and language barriers to charge the migrants exorbitant amounts and make them believe that they are receiving a fair wage for their work. Aware of the victims’ fear and ignorance of their rights and situation as migrants, the members of these criminal bands also threaten to hand their victims over to the authorities, telling them that they will have to serve long prison sentences for illegally entering the countries where they are working. Intimidation and violence are routinely used in such cases. The victims of trafficking who resist are physically attacked, beaten and even murdered. The victims of this type of crime are usually people with little education, no resources, family or connections, who in their desperation become embroiled in these operations without any information at all.[20]

4.       Due Process

109.        Like other migrant workers living in a country that is not their own, migrant farm workers are particularly vulnerable to the violation of their rights to due process, in criminal as well as in administrative matters. This particularly affects undocumented migrant farm workers.  Among the many rights violations suffered by this group of people, we can highlight the following: migrant farm workers are often expelled and/or deported from the countries where they have been working following decisions which are not based on law. This can even happen to people who entered a country legally. The person responsible for the deportation and/or expulsion order is often not impartial, no appeal can be made against the decision, the victim has no right to be heard, or to have access to legal representation. The person often does not understand the charges against him/her, he is not given time to obtain legal advice, translating services and/or access to consular authorities.[21] In some cases, people are held for long periods prior to deportation and/or expulsion, and in conditions that are beneath minimum acceptable standards in terms of hygiene, ventilation, and personal safety.[22]Finally, in spite of the fact that it has been clearly prohibited by international law, many states regularly carry out collective deportations.[23]

Principal Migratory Flows of Farm Workers in the Americas

110.        Migrant farm workers migrate throughout the Americas to the many countries with significant agricultural industries. As stated above, farm work is dependent on intensive use of manpower. In some countries in the region, the local population does not want to work in the agricultural sector. The reason for this may be that salaries in this sector are low, or that there is a social stigma attached to work that is considered difficult, dangerous, exhausting, and poorly paid. Foreigners are therefore needed to meet the need for labor. As already stated, the conditions of extreme poverty in their countries of origin force some foreigners to migrate in order to survive. Once in their country of destination, migrant workers are often prepared to work for lower salaries than that country’s own inhabitants, but that are higher than they would be paid for the same work in their countries of origin.[24]

111.        The United States is one of the countries that receives the most migrants in the Americas and the world. Agriculture is an important sector of the economy in many parts of the United States. The flow of migrants into agricultural work has a long history in the United States. Since the nineteenth century, US employers have encouraged Mexican laborers into different sectors, including agriculture. Later, in the twentieth century, in order to fill the gap in manpower caused by the US participation in the Second World War, the federal government implemented the Bracero Program in the 1940s (1942-1964).  Under this program, more than 4.5 million Mexican laborers crossed the border to find temporary work in different sectors, especially agriculture. When the Bracero Program was wound up (1964), the flow of Mexicans to the USA in search of agricultural  (and other) work continued, although not always at the same rate.[25]

112.        At present, about 2 million migrant workers work in the US agricultural sector. Of these, 1.2 million are foreigners, of whom 80% are Mexican. There are migrant farm workers from Haiti, Central America, Dominican Republic, and South America. It is calculated that a million migrant farm workers in the US are there without documentation. Most of these people (72%) are working with citrus crops, tomatoes, vegetables and tobacco, while the rest (18%) are working with cattle. Although there are some migrant farm workers in almost every state in the Union, more than half are concentrated in California, Florida, Texas, Washington, and North Carolina. States such as Arizona, Illinois, Michigan, and Oregon have experienced a significant increase in the number of migrant farm workers in recent years.[26]

113.        Canada also attracts a significant number of migrant farm workers into the region. Approximately 300,000 people work in Canada’s agricultural sector. There is an undetermined number of migrant farm workers in British Columbia, Ontario, Quebec, Alberta, Nova Scotia, and other provinces. It is worth pointing out that there are thought to be some 200,000 undocumented workers in Canada.[27] In 1996, Canada set up a state program to address the shortage of manpower in the agricultural sector. The program is called Canada’s Seasonal Agricultural Workers Program (CSWAP) and in 2004 it employed around 16,000 seasonal workers. Under this program, Canada issues temporary work visas to the farm workers employed. The program defines the terms for transport, wages, accommodation, deductions, food, and for terminating contracts. These benefits must all be provided by the employer who receives the workers. The program is limited to four provinces: Quebec, Ontario, Alberta, and Manitoba. The migrant farm workers in Canada come from Mexico, the Caribbean, and Central America. They work growing apples, tomatoes, tobacco, cucumbers, cherries, and ginseng, as well as vegetables and flowers.[28]

114.        The southern states of Mexico bordering on Guatemala and Belize receive a significant number of farm workers. Between 80,000 and 100,000 people migrate seasonally to the southern Mexican states of Chiapas, Tabasco, Quintana Roo, Campeche, and the Yucatan to work on the banana, coffee, soya, sugar cane, and various fruit crops.[29] Many are illegal immigrants. The crisis in the Guatemalan agricultural sector has increased the numbers of people attempting to cross into Mexico in search of work.[30] Many Guatemalan campesinos cross into Mexico to work under the temporary farm workers’ program. This program originated from an agreement reached between estate owners and the intermediaries. The intermediary or agent presents the documentation and requests authorization to bring in a number of people for whom the National Migration Institute (INM) issues the relevant immigration document for temporary farm visitors (FMVA).[31] With a migration permit, a worker is allowed to work on a specific farm for a specific employer. The worker is allowed to enter with the members of his family, is entitled to multiple entries and exits, but is restricted to the State of Chiapas.[32]

115.        Costa Rica also receives a significant number of migrant farm workers, who take a variety of jobs in the agricultural sector. Most of these are from Nicaragua and migrate seasonally to Costa Rica to work in a wide range of activities. The most recent figures show that around 300,000-400,000 Nicaraguans live in Costa Rica. A significant percentage of these work in the agricultural sector. The type of work they are engaged in determines where they are concentrated. In the north of Costa Rica many of the migrant farm workers are engaged in harvesting sugar cane, sowing, or packing products for export such as coffee, sugar cane, root vegetables, and fruit. On the Atlantic side of the country, many work in the banana plantations.[33]

116.        Of the Cono Sur countries, Argentina has traditionally received a significant number of farm workers. Historically, Argentina has been the country in Latin America that has received most migration. At present, and according to the figures in Argentina’s last census (2001), 1.5 million foreigners, mostly migrant workers, live in Argentina – this is equivalent to approximately 4% of the national population. Although a significant percentage of these are Europeans (423,000), most of the foreigners living in the country are from other Latin American countries, mostly those bordering Argentina – 233,000 Bolivians, 34,000 Brazilians, 212,000 Chileans, 325,000 Paraguayans, 117,000 Uruguayans, and 88,000 Peruvians.[34] Traditionally, workers have migrated from Bolivia and Paraguay to the northwest of Argentina to work in the wine-growing industry, in soya, vegetable, and fruit crops, and in the sugar industry, among others. In the south, Chilean migrant farm workers, particularly from the island of Chiloé, work in the cattle and agricultural sectors – growing potatoes, vegetables, corn – on the large estates of the Argentine Patagonia. The recent severe economic crisis in Argentina caused a slight decrease in the number of migrant farm workers. Foreigners, including migrant farm workers temporarily left the country because of the lack of employment opportunities.[35]

117.        Like Argentina, the other great historical magnet for migration in Latin America is Venezuela. Different sources show that there were more than 1 million migrants living in Venezuela during the last decade, most of them Colombian.[36] Although most of the Colombians live in urban areas and work in the services sector, a percentage of them work in the agricultural sector along the Colombian/Venezuelan border, producing sugar cane, sorghum, yucca, corn, and, fruit and in the huge cattle ranches.

118.        Another country that has traditionally attracted migration in South America is Paraguay, where 350,000-400,000 migrant workers live, mostly undocumented Brazilians (known as Brasiguaios). Some of these people find temporary farm work growing soya, wheat, sugarcane, citrus and other fruits in different parts of the country.[37]

119.        The number of migrant workers in Chile has increased over the last decade. Traditionally a country where migrants originated, Chile has begun to receive a growing number of foreigners, including Cubans, Ecuadorians, and Peruvians, because of the higher salaries that have resulted from a long period of economic growth.[38] A small number of Bolivians and Peruvians work in the agricultural sector in the north of the country such as the Azapa Valley, mostly in fruit cultivation.

120.        The largest migration of farm workers in the Caribbean is of Haitians on the island of Hispaniola moving to the Dominican Republic. Studies show that in 2001, over 20,000 Haitians were working on farms in the Dominican Republic, mostly in connection with the sugarcane industry.[39]

The International Legal Framework for the Protection of Migrant Farm Workers

121.        Migrant farm workers, like other migrant workers, are protected by different international human rights instruments. Instruments such as the International Convention on the Protection of the Rights of all Migrant Workers and their Families, specifically protects migrant farm workers. Among its main aims, the Convention seeks to increase the mechanisms with which to protect migrant workers and their families in the following areas: circumstances of exploitation and discrimination; preventing the smuggling of people; and providing clear guidance concerning the social benefits to which these people should be entitled. Unfortunately, ten years after its approval, although the Convention is still in force, it has only been ratified by 27 countries, none of which receives significant numbers of migrant workers.[40] By the same token, Conventions 97 (revised) and 143 of the International Labour Organization (ILO) refer specifically to migrant workers and their families. However, these conventions have been ratified by only a few countries (41 in the case of Convention 97, and 18 in that of Convention 143).

122.        In addition, there already exists a series of declarations and international human rights treaties that provide general guarantees for all people and therefore by extension for migrant workers. Among the most important are: the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. In addition, at the inter-American level, we have the articles of the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (the Convention of Belem do Pará), and the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights (Protocol of San Salvador), which protect the generic rights of these people. Furthermore, within the framework of the United Nations Convention against Transnational Organized Crime, several states have recently signed the Protocol against the Smuggling of Migrants by Land, Sea and Air. Other protective laws exist in the shape of the Convention on the Rights of the Child, and ILO Convention 182 on the Worst Forms of Child Labor.

123.        Finally, the Inter-American Court of Human Rights in its advisory opinion OC-18 at the request of the State of Mexico, refers specifically to the extent of the right to equality and the principle of non-discrimination, and their application to the labor rights of migrant workers in the state in which they live and work.

Conclusions

124.        To summarize, this section of our report provides a brief overview of the general situation and background to the human rights violations experienced by migrant farm workers and their families. As mentioned in the introduction, the Rapporteurship has not attempted to achieve an exhaustive study of the situation of migrant farm workers, but to introduce this important issue and describe the situation of these people and so enhance awareness of their sufferings among the authorities, non-governmental and civil society organizations, and public opinion. With this in mind, the chapter focused on describing the main characteristics of this phenomenon and defining the consequences for member states in terms of their obligation to protect and guarantee the basic rights of all those under their jurisdiction.

125.        With this in mind, we have stressed that the number of migrant farm workers is considerable, that their contribution to the economies of many countries is significant, and that large numbers of these people are to be found in many member states of the OAS. We have also shown how these people represent an especially vulnerable sector of society and experience structural vulnerability. We have shown how, just as women and children are particularly vulnerable within an already vulnerable social group, by the nature of their work, migrant farm workers are particularly exposed to serious abuse.

126.        State programs for migrant farm workers such as those developed in Canada and Mexico, among other countries, are important initiatives that are helping to reduce the vulnerability of this sector. These programs not only make it possible to regulate the flow of people entering the destination countries; they also monitor the extent to which the migrant farm workers’ working conditions conform to guidelines that respect their rights and dignity, and those of their families. Some countries of origin, such as Guatemala and Mexico, on the other hand, have designed programs to protect their migrants, including migrant farm workers.[41] Initiatives like these have the potential to benefit migrant farm workers.

127.        The Rapporteurship invites member states of the OAS in which there is a significant number of migrant farm workers to consider emulating the practices mentioned above. By the same token, the Rapporteurship calls on states to take the steps necessary to guarantee and protect the rights of these people in accordance with the international human rights commitments they have already entered into.

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