|
CHAPTER
VI
PROGRESS REPORT OF THE OFFICE OF THE RAPPORTEUR
ON
MIGRANT WORKERS AND THEIR FAMILIES IN THE
HEMISPHERE
1.
During its 92nd regular session, the Inter-American Commission
on Human Rights (hereinafter “the Commission" or “IACHR”) decided
unanimously to embark on a study of the “Report of Migrant Workers and their
Families in the Hemisphere.” To
this end, the IACHR established the Office of the Rapporteur on Migrant Workers
and their Families in the Hemisphere. This
Special Rapporteur’s Office is under the responsibility of one of the IACHR
Commissioners, who serves as the Rapporteur on that subject, with the support of
the Executive Secretariat of the Commission. When it established this Special Rapporteur’s Office, the
Commission limited its field of activity solely to that pertaining to migrant
workers and their families when they move beyond the borders of their countries
of origin. In this regard, the
Commission indicated that the Special Rapporteur's Office would not deal with
other issues such as those referring to “internally displaced persons,”
“stateless persons,” or “refugees.”
2.
The IACHR’s decision to focus on the phenomenon of migrant workers and
their families was based on its previous experience in this area.
As a result of past on-site visits, complaints of human rights
violations, and special hearings over the years, the Commission has observed
that migrant workers and their families are a particularly vulnerable sector of
society and, on many occasions, are subject to abuses and systematic violations
of their basic rights or the failure to have those rights recognized. The IACHR
also took into account the significance that the Organization of American States
(OAS) and member states in the hemisphere have recently attached to the issue of
migrant workers on their hemispheric agenda.
On this last point, it is important to recall what was said by the Heads
of State and Government of the Americas in the Plan of Action of the Second
Summit of the Americas:
[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 on Migrant Workers.
3.
During its 106th regular session, the IACHR designated Dr.
Juan Méndez as its new Special Rapporteur on Migrant Workers and their
Families.
4. In
the present progress report, reference will first be made to certain principles
related to migrant workers developed by the case law of the organizations for
the protection of human rights within the inter-American system (the Commission
and the Court). In the second
place, mention will be made of the principal activities carried out by the
Office of the Special Rapporteur in the course of 1999; mention will also be
made of the voluntary fund established for this Rapporteurship, followed by some
general considerations on this issue. In
the third place, we will set forth the replies provided by member states to some
of the questions contained on the IACHR questionnaire on their de
jure and de facto practices regarding migrant workers and their families.
II.
CERTAIN PRINCIPLES APPLICABLE TO MIGRANT WORKERS AND THEIR FAMILIES
DEVELOPED ON THE BASIS OF THE CASE LAW OF THE INTER-AMERICAN SYSTEM FOR THE
PROTECTION OF HUMAN RIGHTS
5.
One of the pillars of any democratic system and a basic principle of the
Organization of American States is respect for the fundamental rights of
persons, based on the principles of equality and nondiscrimination.
The preamble of the OAS Charter asserts the objective of the
consolidation, “within the framework of democratic institutions, of a system
of individual liberty and social justice,” based on respect for the basic
rights of all men and women without distinction of any kind.
At the same time, it reaffirms “the fundamental rights of human beings
without any distinction as to race, nationality, creed or sex” as a basic
principle of the Organization.
6.
The American Convention on Human Rights and the American Declaration of
the Rights and Duties of Man, the principal legal instruments of the system,
explicitly prohibit discrimination for reasons of race, language or national
origin, among other things.
Notwithstanding the above, States maintain their sovereignty with regard to
controlling their borders, migration into their territory and the ability to
determine, based on nondiscriminatory criteria, whether persons who are not
nationals have the right to reside or remain in their territory.
7.
The two organizations for the protection of human rights in the Americas,
the Commission and the Court, have developed a rich body of case law on the
subject. We will refer to several
principles developed by these organs and which pertain to issues concerning
migrant workers and their families.
a.
Prohibition
of the collective expulsion of aliens, and the principle that no person may be
expelled from the territory from which he or she is a national
8.
Article 22 of the American Convention indicates, among other things,
that:
5.
No one can be expelled from the territory of the state of which he is a
national or be deprived of the right to enter it.
6. An alien lawfully in the territory of a State Party to this Convention
may be expelled from it only pursuant to a decision reached in accordance with
law. 9. The collective expulsion of
aliens is prohibited.
9.
The Commission has had the opportunity to deal with situations in which
violations of this Article were alleged in the report on the Situation of
Haitians in the Dominican Republic and Suriname.
For example, in the Report about Domican Republic the Commission
indicated that, between June 1991 and the end of September of that same year,
approximately 60,000 Haitians were expelled from the Dominican Republic, which
constitutes a violation of Article 22(9) of the American Convention, which
prohibits the collective expulsion of aliens.
Similarly, the Commission pointed out that, in the referred to
indiscriminate round-ups and deportations of persons harvesting sugarcane, many
cases included the expulsion of persons born in the Dominican Republic, in
violation of Article 22(5) of the American Convention, which states that:
"No one can be expelled from the territory of the state of which he is a
national…." Moreover, the Commission stated that indiscriminate
deportations were a violation of Article 22(6) of the American Convention to the
extent that those who were able to prove their status as residents were also
deported without due process.
b.
Right to a fair trial and judicial protection
10.
Article 8, which refers to judicial guarantees, indicates that:
1.
Every person has the right to a hearing, with due guarantees and within a
reasonable time, by a competent, independent, and impartial tribunal, previously
established by law, in the substantiation of any accusation of a criminal nature
made against him or for the determination of his rights and obligations of a
civil, labor, fiscal, or any other nature.
2.
Every person accused of a criminal offense has the right to be presumed
innocent so long as his guilt has not been proven according to law. During the
proceedings, every person is entitled, with full equality, to the following
minimum guarantees:
a.
the right of the accused to be assisted without charge by a translator or
interpreter, if he does not understand or does not speak the language of the
tribunal or court;
b.
prior notification in detail to the accused of the charges against him;
c.
adequate time and means for the preparation of his defense;
d.
the right of the accused to defend himself personally or to be assisted
by legal counsel of his own choosing, and to communicate freely and privately
with his counsel;
e.
the inalienable right to be assisted by counsel provided by the state,
paid or not as the domestic law provides, if the accused does not defend himself
personally or engage his own counsel within the time period established by law;
f.
the right of the defense to examine witnesses present in the court and to
obtain the appearance, as witnesses, of experts or other persons who may throw
light on the facts;
g.
the right not to be compelled to be a witness against himself or to plead
guilty; and
h.
the right to appeal the judgment to a higher court.
3.
A confession of guilt by the accused shall be valid only if it is made
without coercion of any kind.
4.
An accused person acquitted by a nonappealable judgment shall not be
subjected to a new trial for the same cause.
5.
Criminal proceedings shall be public, except insofar as may be necessary
to protect the interests of justice.
11.
The case law of the inter-American human rights system has determined
that in addition to the fact that aliens are entitled to each of the minimum
judicial guarantees recognized in Article 8 of the American Convention, they
also have the right to criminal and administrative proceedings such as the
minimum judicial guarantee to communicate, without delay of any kind, with their
consular representative pursuant to the provisions of Article 36 of the Vienna
Convention on Consular Relations.
This is based on the premise that consular assistance provides a manner
for the accused to defend him or herself, and this has an effect, at times a
decisive one, with respect to the defendant’s other procedural rights.
12.
Communication with the consular office serves a dual purpose:
recognition of the right of states to assist their nationals through
intervention by a consular official and, at the same time, recognition of the
corollary right of nationals of the sending state to have access to consular
officials for the purpose of seeking such assistance.
13.
At the same time, it is said that communication with a consular
representative should be without delay, specifically it has been stated that:
Consequently,
in order to establish the meaning to be given to the expression "without
delay," the purpose of the notification given to the accused has to be
considered. It is self-evident that the purpose of notification is that the
accused has an effective defense. Accordingly, notification must be prompt; in
other words, its timing in the process must be appropriate to achieving that
end. Therefore, because the text of the Vienna Convention on Consular Relations
is not precise, the Court’s interpretation is that notification must be made
at the time the accused is deprived of his freedom, or at least before he makes
his first statement before the authorities.
That
failure to observe a detained foreign national’s right to information,
recognized in Article 36(1)(b) of the Vienna Convention on Consular Relations,
is prejudicial to the due process of law and, in such circumstances, imposition
of the death penalty is a violation of the right not to be deprived of life
"arbitrarily," as stipulated in the relevant provisions of the human
rights treaties (v.g. American
Convention on Human Rights, Article 4; International Covenant on Civil and
Political Rights, Article 6), with the juridical consequences that a violation
of this nature carries, in other words, those pertaining to the State’s
international responsibility and the duty to make reparation.
14.
Moreover, the Commission has dealt with cases in which expelled persons
were taken “to the border without a hearing and without an opportunity to know
and therefore challenge the charges on the basis of which they were repatriated
or deported.” In other cases, the expulsion of aliens are carried out through
summary administrative proceedings in which the persons affected are prevented
any access to effective judicial recourse for the determination of whether or
not they have the right to remain in the country.
Both cases constitute a violation of Articles 8 and 25 of the American
Convention, since they denote a violation of legal due process norms.
c.
Right to nationality
15.
Article 20 of the American Convention indicates that:
1.
Every person has the right to a nationality.
2. Every person has the right to the nationality of the state in whose
territory he was born if he does not have the right to any other nationality.
3. No one shall be arbitrarily deprived of his nationality or of the
right to change it.
16.
The Commission has observed that in many cases, the persons expelled from
a given state were born there and, therefore, were entitled to the nationality
of that state pursuant to the law. On
this point, the Commission has stated that this is a violation of Article 20(3)
of the American Convention, since nobody can be arbitrarily deprived of their
nationality.
17.
In this regard, the Commission stated in its conclusions following an
on-site visit to the Dominican Republic in 1997, that: "some 500,000
undocumented Haitian workers reside in the Dominican Republic. In several cases
these persons have lived in the Dominican Republic for 20 to 40 years, and many
were born there. Most of them confront permanent illegality, which is passed on
to their children, who cannot obtain Dominican nationality, because according to
the restrictive interpretation by the Dominican authorities of Article 11 of the
Constitution, they are the children of 'foreigners in transit.'
It is not possible to consider persons who have resided for several years
in a country in which they have developed innumerable contacts of all types to
be in transit. Consequently, numerous children of Haitian origin are denied
fundamental rights, such as the right to nationality of the country of birth,
access to health care, and access to education."
d.
Protection of the family
18.
Article 17(1) of the American Convention indicates, among other things,
that the family is the natural and fundamental element of society and should be
protected by society and the state. In
the same manner, Article 19 of the Convention indicates that "[e]very minor
child has the right to the measures of protection required by his condition as a
minor on the part of his family, society, and the state."
19.
The Commission has heard cases in which collective expulsions have
entailed the forced separation of family members.
For example, “children have been expelled without their parents, and
parents have been expelled without their children.
Some of the women deported were not allowed to go for their children even
though they had been recently born." Furthermore, the Commission has dealt
with cases in which alien parents of children born in the state concerned have
been expelled, and the judicial systems have not provided the adequate
mechanisms to guarantee that the rights and interests of the children are
properly taken into account at the moment of expulsion.
20.
It is important to note that the United Nations' Convention on the Rights
of the Child indicates in article 9 that the measures which implicate the
separation of parents and children should be extremely exceptional and submitted
for judicial review.
21.
In this regard, the Commission has stated:
…it
may be observed that, while the state undoubtedly has the right and duty to
maintain public order through the control of entry, residence and expulsion of
removable aliens, that right must be balanced against the harm that may result
to the rights of the individuals concerned in the particular case.
…[W]here decision making involves the potential separation of a family,
the resulting interference with family life may only be justified where
necessary to meet a pressing need to protect public order, and where the means
are proportional to that end. The
application of these criteria by various human rights supervisory bodies
indicates that this balancing must be made on a case by case basis, and that the
reasons justifying interference with family life must be very serious indeed.
A
situation such as the one described constitutes a violation of Article 17(1) of
the American Convention, since it fails to comply with the obligation of states
to protect the family. At the same
time, it also entails a violation of Article 19 of the American Convention,
since it involves a failure to comply with the obligation to protect children.
III.
ACTIVITIES CARRIED OUT BY THE OFFICE OF THE SPECIAL RAPPORTEUR ON MIGRANT
WORKERS AND THEIR FAMILIES
a.
Visit to Texas
22.
The Commission conducted an on-site visit of a special character to El
Paso, Texas, from July 6 to 9, 1999, for the purpose of analyzing the situation
of migrant workers and their families in that state.
During their visit, Commission members held meetings with different
representatives and officials from the federal government, Immigration and
Naturalization Services (INS) and nongovernmental organizations, among others.
Similarly, they visited different detention centers and border patrol
locations.
23.
During its stay in El Paso, the Commission met with Mr. Luis Garcia,
District Director for Immigration and Naturalization Service, El Paso District;
Mr. Michael D. Moon, Assistant Chief Patrol Agent of the United States Border
Patrol; Mr. Vincent J. Clausen, Assistant District Director for Detention and
Deportation for the Department of Justice and the Immigration and Naturalization
Service; Mr. Benjamin Rincon Jr., Chief Detention Enforcement Officer of the
Immigration and Naturalization Service, El Paso District; Mr. Joseph A.
Mongiello, Port Director of the Bridge of the Americas Port of Entry; Ms. Isabel
Mullens, Port Director of Paso del Norte Port of Entry; Mr. Richard Duran, Port
Director of Ysleta, Zaragoza Port of Entry; and Ms. Barbara A. Hall, Program
Director of the Southwest Key Juvenile
Center.
24.
The Commission also met with Mr. Antonio Rocco Scandiffio, Program
Coordinator, and other staff members from the State of Texas Workforce
Commission; as well as with Mary Lou Morales, Assistant Director of Nursing
Services Program, Texas Department of Health.
25.
Additionally, the Commission met with members of the Bar of El Paso,
Texas, immigration advocates and representatives of the following human rights
organizations who interact daily with immigrants, asylees and migrants: Las Americas Immigrant Center, Texas Rural Legal Aid, Inc., American
Friends Service Committee Immigration Law Enforcement Monitoring Program,
Diocesan Migrant and Refugee Services, Lawyers’ Committee for Civil Rights
under Law of Texas and Immigrant Refugee Rights Project of El Paso, Southwest
Migrant Farm Worker and Native American Assistance Program (SWAP), Pro Action
Healthcare Outreach Program, Asociacion de Trabajadores Fronterizos, La Mujer
Obrera, and El Paso Coalition for the Homeless Opportunity Center.
26.
The Commission visited the El Paso Processing Center and Detention
Facility of the United States Immigration and Naturalization Service, the Southwest Key Juvenile Center, United States Border Patrol Sector
Headquarters, Paso del Norte Border Patrol Processing Center, Ysleta Port of
Entry, Bridge of the Americas Port of Entry, and El Paso del Norte Port of
Entry.
27.
Furthermore, the Commission received information on issues relevant to
the purpose of its visit, which included the Immigration and Naturalization
Service’s mandate, procedures for processing asylum seekers and migrants, Operation Hold the Line, the expedited removal procedure under the
Immigration Act, conditions of detention, access to attorneys and legal
representation, trafficking of migrants, alleged human rights abuses of
migrants, as well as the educational, working, medical and housing conditions of
migrants there.
b.
Seminars and workshops
28.
In July 1999, the Commission participated in the seminar on
"Protection and Consular Assistance," organized by Grupo
Puebla in Guatemala.
29.
On September 4 through 6, 2000, the Commission will cosponsor, along with
the Economic Commission for Latin America and the Caribbean (CEPAL) and the
International Organization of Migrants (IOM), an international symposium on
migration in Latin America and the Caribbean which will take place in San Jose,
Costa Rica.
30.
Additionally, the Commission will participate in a workshop of experts on
the "Best Practice of Migrant Workers" in June of this year.
This workshop will take place in Santiago, Chile, and will be organized
by the Economic Council for Latin America and the Caribbean (CEPAL).
c.
Reports
31.
During 1999, the Commission published its "Report on the Situation
of Human Rights in the Dominican Republic" in which the Commission analyzed
the issue of migrant workers. On
this issue, the Commission analyzed the situation concerning Haitian migrant
workers and their families in the Dominican Republic.
d.
Request to serve as Permanent Observer for Grupo
Puebla
32.
On October 8, 1999, the Commission formally requested, through the
Ministry of Foreign Relations of El Salvador, participating as a permanent
observer for Grupo Puebla as a means
to better understand the different aspects of the migrant phenomena.
e.
IOM Cooperation Agreement
33.
In October 1999, the Commission requested the Executive Secretariat to
execute the necessary steps with the International Organization of Migrants
(IOM) for the purpose of reaching an agreement of cooperation between both
institutions.
34.
On March 22, 2000, the previously mentioned cooperation agreement was
signed at the Commission. The
Executive Secretary of the IACHR, Ambassador Jorge Taiana, and the General
Director of the IOM, Brunson McKinley, signed the agreement.
35.
Both institutions submitted a press release together in which they
expressed the following:
This
institutional Cooperation Agreement paves the way for a series of joint
activities promoting the observance and effective protection of the human rights
of migrants in the Americas by the IACHR, as the principal organ of the
Organization of American States responsible for promoting and protecting human
rights in the Hemisphere, and by the IOM, in its capacity as an
intergovernmental organization helping to deal with the various challenges posed
by migration.
Both
institutions are aware that migration issues, especially those to do with
migrant workers and members of their families, today constitute a key area in
the progressive universalization of international relations and that it is
necessary to address those issues from a multilateral perspective, while also
bearing in mind the desire expressed by the Heads of State and Government of the
Americas in the Second Summit of the Americas that a special effort be made to
guarantee full observance and respect for the human rights of migrants.
The
two institutions trust that this Cooperation Agreement will lead to joint
activities in the near future.
f.
Voluntary Fund
36.
The Commission created a voluntary fund for the Rapporteur of Migrant
Workers and their Families for the purpose of specifically financing the
activities of that Rapporteurship. This
fund is open to contributions made by member states of and observers before the
OAS, governmental organizations and intergovernmental organizations, cooperation
agencies and foundations, among others.
37.
The Commission would like to emphasize that in December 1999 the
Government of Mexico contributed a sum of US$50,000, the first and only state to
date that has made a financial contribution to this Special Rapporteur. This
valuable contribution from the Government of Mexico permits the Special
Rapporteur to fulfill additional and new activities on this issue.
g.
Final Observations
38. With
the purpose of continuing to advance in its study on migrant workers and their
families, the Commission has decided as follows:
1.
To continue studying the situation of migrant workers during future on-site visits.
2.
To reiterate the request for a response to the questionnaire to those
member states that have not replied.
3.
To participate in the World Conference on Xenophobia and its preparatory
meetings.
4.
To carry out joint activities with other institutions and organizations
dedicated to the issue of migrant workers and their families.
IV.
RESPONSES
FROM THE MEMBER STATES TO THE QUESTIONNAIRE ON MIGRANT WORKERS AND THEIR
FAMILIES
a.
Previous Considerations
39.
One of the first activities conducted by the Special Rapporteur on
"Migrant Workers and their Families in the Hemisphere" was that of
elaborating two questionnaires for the purpose of collecting information on the
situation of migrant workers and their families.
One of the questionnaires was sent to each member state of the OAS, and
the other was sent to nongovernmental organizations dedicated to the issue of
migrant workers in the region. The
aim sought through sending out such questionnaires is to have a broader vision
concerning the characteristics, practices and legislation in existence in each
state with respect to the phenomena of migrant workers and their families.
The questionnaires were sent to the states in May 1998 and a period until
November 1998 was granted for the states to respond. As
a result of receiving only a few responses, the Commission reiterated the
questionnaires in December 1998, granting an additional period to submit a
response. The following states responded to the questionnaire: Brazil,
Canada, Colombia, Chile, Dominica, Ecuador, the United States, Guatemala,
Grenada, Honduras, Mexico, Saint Lucia, Trinidad and Tobago, and Venezuela.
40.
The questionnaire consists of two groups of questions. One group of questions deals with both general and
demographic issues (questions 1 to 14) and the other group refers to rights
(questions 15 to 59). Some of the
questions place the states within a double perspective: on one hand the
questions refer to them as receivers of migrant workers and on the other hand as
suppliers of migrants; the purpose of these types of questions is to collect
information on the perception states have in relation to their nationals who are
found working in another state.
41. To
define migrant worker and other terms used in this Report, the IACHR has
followed the definitions used by the International Convention for the Protection
of the Rights of Migrant Workers and the Members of Their Families, of the
United Nations. Accordingly, the
IACHR wishes to clarify the scope of the following terms used in the
questionnaire:
- Migrant worker:
Any person who is going to be engaged, is engaged or has been engaged in
a remunerated activity in a country of which he is not a native.
- Border migrant worker:
Any migrant worker who retains his normal residence in a neighboring
country to which he usually returns every day or at least once per week.
- Seasonal worker:
Any migrant worker whose labor, by its nature, depends on seasonal
conditions and is performed only during a certain time of the year.
- Family members of the
migrant worker: These are any
person married to the migrant worker or any person who in accordance with
related law have equivalent effects to that of marriage, as well as their
dependent children and other dependent persons who are recognized as members of
their family by the applicable law or bilateral or multilateral treaties between
the countries.
- Country of origin:
This means the country to which the person referred to is a native.
- Country of employment:
This means the country where the migrant worker is going to be engaged,
is engaged or has been engaged in a remunerated activity.
-
Country of transit:
This refers to the country through which the person in question travels
on any trip to the country of employment or from the country of employment to
the country of origin, or to the country of habitual residence.
b.
Responses
42. In
continuation, the Commission will proceed to reproduce some of the responses to
the questionnaire received from member states.
These responses refer to the section on rights and have been grouped
according to issue for the purpose of better appreciating them.
1.
Xenophobia
1.
Does xenophobia or racism with respect to migrant workers exist in your
country? How is it manifested?
Are there any types of law that punish such acts against migrant workers?
2.
Is there xenophobia or racism that affects the migrant workers of your
country in the countries of employment or transit?
How is it manifested? Are
there any laws to sanction such acts?
Brazil
1.
Immigrants in Brazil do not encounter any serious problem of violation of
their rights, much less a hostile or discriminatory environment. On the
contrary, it is known that Brazil has a tradition of welcoming foreigners of
whatever nationality, be they tourists who come here for short visits, or be
they immigrants who settle here and rapidly adapt to the society.
The Department
of Foreigners of the Ministry of Justice does however record some instances of
complaints of mistreatment committed against foreigners. In nearly all cases,
the victims are persons here illegally, whom it is more difficult for the state
to protect. These groups are more
vulnerable to exploitation in the labor market. Because they are clandestine,
they are subjected to extremely long hours and ridiculously low remuneration,
generally imposed by citizens of their own country who own small businesses. The
government and nongovernmental organizations receive reports of men, women, and
children who are ilegally legally in the country who work up to 18 hours a day
for less than the established minimum wage.
The Brazilian
Government is keenly aware of this problem and the appeals from nongovernmental
organizations on behalf of these groups. One
of the recommendations of the National Human Rights Program is the granting of
legal status to these people by means of an amnesty. (It also proposes the
establishment of specialized divisions within the police organizations to
prevent forced labor of foreigners.)
Specific
amnesty laws were recently approved. On September 7th 1998, as part
of the independence week celebration and to mark the third anniversary of the
National Human Rights Program, the President signed Decree 2,711, published in
the Official Gazette on September 9, 1998, which regulates the granting of
amnesty to illegal aliens, granted by Law 9,675 of June 25, 1998.
The measure grants amnesty to aliens who entered Brazil before June 29,
1998, or who have expired visas (the Ministry of Justice estimates there are
100,000 illegal aliens in Brazil) and gives them the right to provisional
registration without payment of the fine normally imposed because of their
illegal status. The decree also
covers those who benefited from Amnesty Law 7,685, of December 1988, who did not
have at the time the necessary documents to qualify for permanent residence.
The alien who
thus becomes legal has the right to an identity card valid for two years, of the
same type used for the other categories of residents in the country.
The individual can become legal by going to a unit of the Federal Police
Department within 90 days after the publication of the decree in the Official
Gazette. The first step is payment
of the registration fees (R$27.43) and for the identity card (R$57.76). The
applicant must also present evidence of the date of their entry into the
country, a certified copy of the passport, a certificate showing no criminal
record in Brazil, and two photographs. To
prove that he or she entered the country before June 29, 1998 the alien can
submit various documents, such as a passport with the entry stamp, light bills,
or witnesses. Temporary
registration gives the alien legal access to the job market and the public
education, health, and social security systems.
The
government’s decision to grant amnesty to the illegal aliens was widely
publicized, and praised by the media, including radio and television.
As of October 1st, more than 9,000 foreigners had taken
advantage of Decree 2,711 to legalize their presence in Brazil, most of them of
Chinese origin.
A byproduct of
the measure is the exposure of criminal elements who sought refuge in Brazil and
are now more visible to law enforcement agencies. As Dr. Sandra Vale, Secretary
of Justice of the Ministry of Justice, explains, “Those who did not legalize
their situation by the deadline certainly have something to hide from the
authorities.” The target here is drug traffickers, terrorists, and swindlers.
Through the
instrument of amnesty, the government allowed immigrants to legalize their
situation and thereby bring under the influence of the state those who were
living outside the law. The decree reinforces the open and nondiscriminatory
nature of Brazilian society and is one more chapter in the policy of defense of
the basic rights and guarantees of Brazilian citizens and aliens, as provided in
Article 5 of the Federal Constitution.
2.
The Brazilian Government has no reports on systematic racism or other
forms of discrimination against Brazilians in other countries. However, it does
receive from time to time general complaints, which are dealt with under the
policy of assistance to Brazilians living abroad.
On November 5,
however, the Human Rights Committee of the House of Representatives held a
public hearing to hear complaints of human rights violations of Brazilians in
Paraguay (the Braziguayans), basically involving child prostitution, illegal
arrests, and blackmail. The
Brazilian Government took up the matter with Paraguayan authorities, and
undertook joint police operations at border posts to combat child prostitution.
Canada
1. Xenophobia
or racism exists in all countries. The Immigration Act and Regulations and all
Canada's policies, programs and practices with respect to immigration are
subject to the Canadian Charter of Rights and Freedoms, which outlaws
discrimination based on race, national or ethnic origin, colour, religion, sex,
age, or mental or physical disability. These equality provisions apply not only
to Canadians citizens but also to permanent residents, asylum seekers and
visitors (including temporary workers).
Under the Canadian Human Rights Act it is against the law for any employer or
provider of a service that falls within federal jurisdiction to make unlawful
distinctions based on the following prohibited grounds: race, national or ethnic
origin, religion, age, sex (including pregnancy and childbirth), marital status,
family status, pardoned conviction, physical or mental disability, sexual
orientation.
Everyone is protected by this Act in dealing with the following
employers: federal departments,
agencies and Crown corporations, Canada Post, chartered banks, national
airlines, interprovincial communications and telephone companies,
interprovincial transportation companies and other federally regulated
industries.
All provinces and territories have similar laws forbidding discrimination
in their areas of jurisdiction such as labour law other than in respect of the
areas mentioned immediately above; education, housing, health care etc.
2. Not
that we are aware of.
Colombia
1.
There are no manifestations of xenophobia/racism against migrant workers
by either government employees or Colombian citizens. The General Office for
Black Communities and Other Ethnic Groups (Ministry of the Interior) has not
received any complaints or charges of xenophobia/racism from foreign nationals.
As
for pertinent legislation, protection of non-nationals figures in the 1991
Constitution. Title II, Chapter I, Article 13 states, “All persons are born
free and equal before the law. They shall receive equal protection and treatment
at the hands of authorities and shall enjoy equal rights, liberties and
opportunities with no discrimination based on sex, race, national or family
origin, language, religion, or political/philosophical opinion.”
It
should be mentioned that a foreign citizen who feels that he or she has been the
object of xenophobia/racism can seek the protection (tutela) of and compliance (cumplimiento)
with the law. Tutela is provided for
by Article 86 of the Constitution and regulated by decrees 2591 (1991) and 306
(1992).
2.
Complaints regarding xenophobia in States of employment have been
received from Colombian citizens working abroad. The acts cited include being
paid less than the legal minimum wage and being mistreated by law enforcement
authorities. There is no legislation providing for punishment of such acts in
the States of employment.
Dominica
1.
We are unable to furnish you with a response to this question.
2.
We are unable to furnish you with a response to this question.
Ecuador
1.
Such aberrant behavior does not exist. The constitution outlaws all forms
of discrimination and thus it has not been necessary to enact special
legislation to this effect. The constitution guarantees equal treatment for
nationals and foreigners with no exceptions, thus safeguarding all persons.
2.
Does not exist.
Grenada
1.
No (ii) Not applicable (iii) Judicial System.
2.
No (ii) Not applicable (iii) No.
Guatemala
1.
Such behavior does not exist in Guatemala. Guatemalan society readily
accepts social intermingling of and with foreigners, especially as the
country’s location has made it a place of migrations ever since the colonial
era. Both temporary migration and permanent immigration are accepted.
The
Labor Code (Title I, Article 14bis) outlaws discrimination based on race, sex,
nationality, marital status, political belief, religion or economic situation.
Article 272 of Title VIII, Chapter II of the same Code stipulates that any
violation is punishable by a fine of 1,500 to 5,000 quetzals.
2.
Yes, there are violations. There is no legislation in this regard. For
example, on 23 November 1997, The Minister of Labor and Social Welfare of
Guatemala issued a press release based on a report received from the Embassy of
Guatemala in Korea. In this fashion it informed the public of the
discrimination, ill treatment and limitations on freedom of movement suffered by
Guatemalan workers employed by two different maquiladora
companies in Korea.
The
Constitution of Guatemala, the Vienna Convention on Consular Relations and other
international instruments all call on states to protect their citizens when they
are abroad. Thus, Guatemalan consulates and their employees are committed to
safeguarding the fundamental rights of our citizens in their respective
jurisdictions. In the above-mentioned case, the workers were repatriated to
Guatemala and then filed for back pay. The dispute was settled when an agreement
on payment was signed by said workers and the company in Guatemala.
Honduras
1.
No.
2.
Honduran women transiting Mexico in search of the American dream suffer
discrimination. They are often accused of having HIV/AIDS (according to a study
carried out by Dr. Rodolfo Casillas, a Mexican national).
In
the United States xenophobia and discrimination are all too commonplace in the
lives of Honduran workers and their families, who are made to suffer for the
mere fact of being Latinos. The
suffering is aggravated in the case of workers without proper documentation. The
rights of migrant workers are continually being violated, not only by
authorities, but also by employers and US nationals in general.
Mexico
1.
The Government of Mexico can affirm that there has never been and today
there is no racism, xenophobia or any other kind of discriminatory treatment of
foreigners in our country.
The
migration policy of the government of Mexico is based on the recognition that
our country is a place of origin, destination and transit of major migratory
movements. Mexican policy is consistent with the complexity of such flows and
their structural underpinnings. Moreover, one of the main pillars of our policy
is the commitment of all Mexican authorities to respect the human rights of
migrants at all times.
Mexico
has gained international recognition for its longstanding policy of offering
refuge and asylum. Of note in this area is the implementation of the Migratory
Stabilization Program undertaken in August 1996. This program granted Guatemalan
refugees that had entered Mexico in the 1980’s the chance of formally
immigrating if they intended to settle permanently in the country. They could
thus acquire immigrant status and the associated right of applying for a Mexican
naturalization card. The same program also gives Guatemalans who want to return
their country the chance to regularize their situation in Mexico by acquiring
non-immigrant status.
If
any discriminatory practice were to occur, domestic legislation and
international treaties are in place to punish it. Mexico has signed various
international conventions, including the International Convention on the
Elimination of All Forms of Racial Discrimination (in effect since 20 March
1975), the International Convention on the Prevention and Punishment of the
Crime of Apartheid (in effect since 3 April 1980) and the International
Convention on the Elimination of All Forms of Discrimination Against Women (in
effect since 3 September 1981).
Moreover,
any kind of discrimination against workers, be they migrants or not, is
expressly prohibited by the provisions of Article 123, section VII, of the
Constitution of the United Mexican States.
Article
123. Everyone has the right to dignified and socially useful employment. To this
end and according to law, efforts will be made to promote the creation of jobs
and the social organization of work. The National Congress, without contravening
the following principles, shall pass labor legislation to regulate:
For
workers, day laborers, employees, servants, artisans and in general for all
employment contracts:
I…
VII.
Equal pay for equal work, regardless of the sex or nationality of the
person in question.
The
Federal Labor Law goes on to stipulate that:
Article
56. Conditions attached to employment cannot be less than those set by this law.
They must be proportionate to the service offered and include equal pay for
equal work. No differences on the basis of race, nationality, sex, age,
religious belief or political doctrine shall be established, except in ways
expressly permitted by this Law.
It
can thus be seen that migrant workers in Mexico are treated exactly as Mexican
nationals are in regard to work.
Mexican
legislation provides for sanctions for any violation of the labor rights of
workers in general, including any discrimination that may be suffered at the
hands of employers. Title XVI (Responsibilities and Sanctions) of the Federal
Labor Law states:
Article
992. Any violation of labor regulations committed by employers or workers shall
be punished in accordance with the provisions of this Title, independently of
any responsibility they may have for failing to meet their obligations.
The
amount of any fines established in this Title shall be calculated on the basis
of the daily amount of the minimum wage in effect in the place and at the time
that a violation occurs.
It
is sad to note that Mexicans that have emigrated to the United States of America
at times do suffer from xenophobic, racist and discriminatory acts at the hands
of U.S. authorities and various groups.
The National
Human Rights Commission has studied and documented the situation of Mexican
migrant workers in its “Report on Violations of the Human Rights of Mexican
Migrant Workers as They Travel Toward the Northern Border, Cross It and Enter
the Southern Border Zone of the United States.” This study covers the years
from 1988 to 1990 and mentions progress made during the first half of 1991.
This was
followed by the “Second Report on Violations of the Human Rights of Mexican
Migrant Workers as They Travel Toward the Northern Border, Cross It and Enter
the Southern Border Zone of the United States,” covering 1991 to 1993 and
incorporating events of 1994.
2.
See answers to question 2 in the next grou of questions (Is there any
discrimination against migrant workers from your countru in the countries of
employment or the countries of transit?)
Saint Lucia
1. No.
2. No
applicable.
Trinidad and Tobago
1.
Xenophobia or racism with respect to migrant workers does not exist in
this country.
2.
There is no xenophobia or racism that affects the migrant workers of this
country in the countries of employment.
United States
1. Immigration
is a controversial subject, the topic of recent legislation, and the subject of
considerable national angst. Most Americans recognize that the United States is
a nation of immigrants yet many are concerned about the notion of an open door
policy. The range of beliefs concerning migrant workers runs from overwhelming
acceptance to intense xenophobia/racism.
There are many Federal, state and local laws that prohibit certain action
taken against migrant workers. These laws include criminal prohibitions
concerning the deprivation of personal liberties (racial violence, misconduct by
local and federal law enforcement of finials, violations of the peonage and
involuntary servitude statutes that protect migrant workers and others from
being held in bondage); prohibitions against the use of force or threats of
force to injure or intimidate any person involved in the exercise of certain
federal rights and activities, the Fair
Labor Standards Act, the Migrant and Seasonal Agricultural Worker Protection
Act, and typical criminal statutes covering assault, battery, kidnapping and
other violent crimes. Civil prohibitions include anti discrimination laws in
employment, including one that specifically prohibits citizenship status
discrimination against certain migrant workers (8 U.S.C.
§1324b), labor protections (fair wages, overtime, housing conditions), and
safety protections.
The Federal Government has taken a leadership role in confronting
criminal activity facing migrant workers, and others. The Hate
Crime Statistics Act requires the Justice Department to acquire data on
crimes that manifest prejudice based upon race, religion, sexual orientation, or
ethnicity, and to publish annual findings. The Hate
Crimes Sentencing Enhancement Act provides for sentencing enhancement for
crimes that are "hate crimes." A number of states also have enacted
hate crime statutory provisions covering violence and intimidation, civil
action, criminal penalties, data collection, and training for law enforcement
personnel.
2. Given
that U.S. citizens work in many different parts of the globe and in many
different capacities, it is difficult to respond in specific fashion. The annual
U.S. Government publication, "Country
Reports on Human Rights Practices, " however, discusses worker rights
in countries throughout the world.
Venezuela
1.
No. Venezuela has always
been known as a country receiving large migratory inflows from Europe, Latin
America and other parts of the world. The result is that our society is made up
of peoples of various races and shows respect for the cultural and personal
identity of all.
The
Constitution of Venezuela recognizes equal rights and duties for citizens and
foreigners alike, thus strengthening the feeling of brotherhood among all
members of our society.
Legislation
that went against the principle of equal treatment for Venezuelans and
non-citizens has been revised to eliminate all discriminatory provisions. The
Immigration and Settlement Act of 1936 was modified in 1966 and its provisions
prohibiting non-whites and gypsies from immigrating were deleted.
continued...
[ Table of Contents | Previous |
Next ]
See article 3(l) of the Charter of the Organization of
American States.
|
