Inter-American Developments on Globalization's Refugees: New Rights for Migrant Workers and their Families

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  • 1 Assistant Professor of Law and Director, Farmworker Legal Aid Clinic, Villanova University School of Law.
  • 2 Practitioner-in-Residence, International Human Rights Law Clinic, Washington College of Law, American University.

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  • 1 Reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/ser. L/V/11.82, doc. 6 rev.1 1 (1992), hereinafter Am. Decl.' 2 Ibid. 3 Entered into force in 1951, as amended by the Protocol of Buenos Aires, signed on 27 February 1967, 721 UNTS 324, by the Protocol of Cartagena de Indias, approved on 5 December 1985,119 UNTS 3, by the Protocol of Washington, approved on 14 December 1992, reprinted in 33 ILM 981, and by the Protocol of Managua, adopted on 10 June 1993, reprinted in 33 ILM 981, at http://www.oas.org/juridico/english/charter.html. 4 Richard J. Wilson and Jan Perlin, "The Inter-American Human Rights System: Activities from Late 2000 through October 2002", 18 Am. U. Int'l L. Rev. (2003), 651-752, at 675. 5 For example, "Report of the Secretary-General of the UN", A/57/387 (stating: "[I]t is time to take a more comprehensive look at the various dimensions of the migration issue, which now involves hundreds of millions of people and affects countries of origin, transit and destination. We need

  • to understand better the causes of international flows of people and their complex interrelation- ship with development."); UN GA Res. A/56/563 (21 December 2001) ("Recalling ... that heads of State and Government at the United Nations Millennium Summit resolved to take measures, inter alia, to ensure respect for and protection of the human rights of migrants, migrant workers and their families.") 6 Certified Texts of the Declarations and Resolutions adopted by the General Assembly at its eighth plenary session, AG/RES. 1404 (XXVI-0/96) OEA/Ser.P/JQCVI-0.2, , 7 June 1996, paras. 11 and 20. 7 1996 Annual Report of the IACHR, OEA/Ser.L/V/11.95 Doc. 7 rev. (14 March 1997). 8 AG/RES. 1611, OEA/Ser.P (XIX-O-99) (urging member states to protect the human rights of all migrant workers and their families, requesting a report on the situation of migrants in the hemisphere, seeking the creation of a Special Rapporteur on the Rights of All Migrant Workers and their Families, and urging of state parties to ratify the International Convention on the Protection of the Rights of All Migrant Workers and their Families); AG/RES.1548 (CCVIII- 0-98); Plan of Action signed by the Heads of State and Government participating in the Second Summit of the Americas, Santiago de Chile, Chile, 18-19 April 1998; Declaration of Nuevo Leon, Special Summit of the Americas, 13 January 2004. 9 United Nations Department of Economic And Social Affairs, Population Division, International Migration Report 2002, 3, hereinafter International Migration Report 2002. 10 There are 35 million migrants in the United States, which absorbed 1.4 million migrants annually from 1995-2000, as opposed to Europe, which had an annual gain of 0.8 million migrants per year. Note that these numbers do not distinguish between voluntary and involuntary migrants. Ibid., 2. 11 See International Organization for Migration (IOM), World Migration Report (WMR) 2003, 31. About 85 per cent of the almost two million hired seasonal employees on US crop farms were born in Mexico. See ibid., section on Mexico-US Migration, 133.

  • 12 See International Labour Organization (ILO), Social Protection Sector, International Migration Programme (Geneva), ILC 2004: General Discussion on Migrant Workers based on an Integrated Approach, 1, 4, at http://www.ilo.org/public/english/protection/migrant/download/ilc2-en.pdf, hereinafter ILC 2004. 13 Ibid., 5. 14 See IOM, World Migration Report (WMR) 2003,174. 15 Ibid., 175. 16 See IOM, � Btn�!'ont!/ &K</)'.' 7�f �� o/'Mtgr�i'on .F/o�.t &/�u�n Co�� �!M an� A�ra�a, 16 See IOM, A Binational Study: 1he State of Migration Flows Between Costa Rica and Nicaragua, December 2001,1, 7-8, at http://www.rcmvs.org/investigacion/BinationalStudyCR-Nic.pdf. 17 Ibid., 11. 18 Ibid. 19 Ibid., 18. 20 Ibid. 21 Unemployment in Argentina was 12.9 per cent in 1999,14.3 per cent in 2000, and exceeded 20 per cent in January 2002. Ibid, 189-90. 22 See IOM, World Migration Report (WMR) 2003, 189-90. In 2000, the negative balance of Argentines abroad each year jumped from 5,000 to 80,000. See ibid., 190.

  • 23 U.S. Census Bureau, Census 2000 Special Report: "Migration by Race and Hispanic Origin: 1995-2000", 3 (2003). 24 Haiti, Encyclopaedia Britannica Online. 25 The majority of Dominicans are of mixed European and African descent (73%) with a sizeable European minority (16%), while the Haitian population is 95% African and only 5% mixed-race and white. See "Dominican Republic" and "Haiti" in U.S. Central Intelligence Agency, World Factbook (2004). 26 Advisory Opinion OC -18/03, Legal Status and Rights of Undocumented Migrants, Inter- AmCtHR (17 September 2003) para. 69(h), hereinafter 'Advisory Opinion OC-18' (referencing ILO, Convention No. 97 concerning Migrant Workers (revised) of 1949 and Convention No. 143 concerning Migrant Workers (Supplementary Provisions) of 1975, Art. 11); Inter-AmCommHR Progress Report on the Situation of Migrant Workers and their Families in the Hemisphere, (1996 Ann. Rep.), paras. 10 and 11. The definitions employed by the Inter-AmCtHR and the Inter-AmCommHR mirror those employed in the International Convention on the Protection of the Rights of Migrant Workers and their Families. Art. 2(1) International Convention on the Protection of the Rights of All Migrant Workers and their Families, G.A. res. 45/158, annex, 45 UN GAOR Supp. (No. 49A) at 262, UN Doc. A/45/49 (1990), entered into force 1 July 2003. 27 Advisory Opinion OC-18, para. 69(i) (defining a documented migrant as "[a] person who is authorized to enter, stay and engage in a remunerated activity in the State of employment, pursu- ant to the law of the State and international agreements to which the State is a party") and 69(j) (defining an undocumented migrant worker as "[a] person who is not authorized to enter, stay and engage in a remunerated activity in the State of employment, pursuant to the law of the State and international agreements to which that State is a party and who, despite this, engages in the said activity.") 28 IOM, World Migration Report (WNIRJ 2003, 9, Textbox 1.2 (defining "forced migration" as the "non-voluntary movement of a person wishing to escape an armed conflict or a situation of violence and/or the violation of his or her rights, or a natural or man-made disaster. This term applies to refugee movements, movements caused by trafficking and forced exchanges of popula- tions among states.")

  • 29 ILO, ILC 2004, 3 ("noting factors such as widening income divergence between countries, high population growth, unemployment and landlessness in sending countries and labor demands in receiving countries.") 30 Ibid. 31 Ibid 32 The scope of this article is limited to rights of the migrant worker, and does not address the dis- tinct rights and protections afforded to refugees, asylum seekers and internally displaced persons. For a thorough examination of the available human rights mechanisms, procedures and jurispru- dence pertaining to refugees, asylum seekers and internally displaced persons in the Americas, see Beth Lyon and Soren Rottman, "The Inter-American Mechanisms", in Joan Fitzpatrick (ed.), Human Rights Protection for Refugees, Asylum-Seekers, and Internally Displaced Persons: A Guide to International Mechanisms and Procedures, 439-93, (Ardsley NY, 2001). 33 This is not intended to be an exhaustive review of all activities before the Inter-AmCommHR or the Inter-AmCtHR pertaining to the rights of all migrants, but merely seeks to serve as an introduction to those rights addressed by the Inter-AmCommHR and the Inter-AmCtHR spe- cific to migrant workers. Beyond the scope of this article are a variety of social and cultural rights of migrant workers and their families such as language rights, the right to education, health care and the right to protection of the family. 34 Organization of American States, About the OAS", at http://www.oas.org/main/main. asp?sLang=E&sLink=../../documents/eng/memberstates.asp.

  • 35 Reprinted in Basic Documents ..., art. 44, hereinafter ACHR'. 36 Art. 20(b), Statute of the Inter-American Commission of Human Rights, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OAS/Ser.L/V/1.4 Rev.7 (2 February 2000), at http://www.cidh.oas.orgBasicos/basicl5.htm. 37 OAS member states that have not ratified the ACHR are: The Bahamas, Belize, Canada, Cuba, Guyana, Saint Kits and Nevis, Saint Lucia, Saint Vincent and the Grenadines, and the United States. See U.S. Department of State, "Fact Sheet for Organization of American States" (20 August 2003), at www.state.gov/p/wha/rls/fs/23424.htm; See Inter-American Commission on Human Rights, "Signatures and Current Status of Ratification: American Convention on Human Rights 'Pact of San Jose, Costa Rica"', at http://www.cidh.org/Basicos/basic4.htm. 38 David J. Harris, "Regional Protection of Human Rights: The Inter-American Achievement", in David J. Harris and Stephen Livingstone (eds.), The Inter-American System of Human Rights (Oxford, New York,1998),1-29, at 21. 39 ACHR, Art. 62(3) (contentious jurisdiction), Art. 64(1) (advisory jurisdiction). 40 Ibid., Art. 64(1). 41 Ibid., Art. 62(1) (State may recognize the Court ruling as binding either through ratification or by special agreement), Art. 64(2) (provision allowing Court to issue an opinion "regarding compat- ibility of any of its domestic laws with the aforesaid international instruments").

  • 42 Ibid., Art. 63(1), Art. 68(2). 43 Ibid., Art. 61(1); See Rules of Procedure of the Inter-American Commission on Human Rights, Art. 27, (entered into force on 1 May 2001), at http://www.cidh.org/Basicos/newregulations. htm. 44 Am. Decl., Art. XI (right to the preservation of health and to well-being), Art. XIV (right to work and to fair remuneration), and Art. XV (right to social security). Art. 34(g) of the OAS Charter recognizes the right to "(g) fair wages, employment opportunities, and acceptable work- ing conditions for all," while Arts. 34(h)-(l) include other fundamental economic, social and cultural rights. Art. 45 of the OAS Charter provides: ... (b) Work is a right and a social duty, it gives dignity to the one who performs it, and it should be performed under conditions, including a system of fair wages, that ensure life, health, and a decent standard of living for the worker and his family, both during his working years and in his old age, or when any circumstance deprives him of the possibility of work- ing. For an interesting account of the contributions made by Latin American constitutions and schol- ars to the formation of international economic, social and cultural rights standards, see Paolo G. Carozza, "From Conquest to Constitutions: Retrieving a Latin American Tradition of the Idea of Human Rights", 25 H. Rts. Q, 281-313 (2003). 45 ACHR, Art. 6. 46 ACHR, Art.15. 47 ACHR, Art. 16. 48 ILO Convention No. 105, Abolition of Forced Labour, adopted 1957, ILO Convention No. 87, Freedom of Association and Protection of the Right to Organize, adopted 1948, and ILO Convention No. 98, Right to Organize and Collective Bargaining, adopted 1949, at http://www. ilo.org/ilolex/english/convdispl.htm.

  • 49 ACHR, Art. 4. so ACHR, Art. 5. 51 ACHR, Art. 7. 52 ACHR, Art. 8. 53 ACHR, Art. 25. 54 The authors have found only one case, decided by the Inter-AmCommHR mentioning Art. 6. The text indicates that the Commission had not found a violation of the right to be free from slavery under Art. 6, but rather the right to personal liberty, encompassed in Art. 7. Marguerite Fenelon, Case 6586, Inter-AmCommHR 91, OEA/ser. L/V/IL61, doc. 22 rev.1 1 (1982) (Ann. Rep. 1982-83). 55 Abel Ayoroa Argondofla, Case 2756, Inter-AmCommHR, 64, OEA/ser. LN/II.47, doc. 13, rev. 1 (1979) (Ann. Rep. 1978), declaring Bolivia had violated Art. 1 (right to life, liberty and per- sonal security), Art. 8 (right to residence and movement), Art. 25 (right to protection against arbitrary arrest) and Art. 26 (right to due process) of the Am. Decl., where petitioner, a legal adviser to a number of trade unions, was arbitrarily arrested, detained and tortured by Bolivian security forces; Israel Marquez et al., Case 4425, Inter-AmCommHRInter-AmCommHR, 81, OEA/ser. LN/11.54, doc. 9, rev. 1 (1981) (Ann. Rep. 1980-81); Israel Marquez et al., Case 4425, Inter-AmCommHR, 81, OEA/ser. L/V/11.54, doc. 9, rev.1 1 (1981) (Ann. Rep.1980-81). 56 Antonio Agosto Cançado Trindade, "Current State and Perspectives of the Inter-American System of Human Rights Protection at the Dawn of the New Century", 8 Tul. J. Int'l and Comp. L. 5 (Spring 2000), 5-47,11. Prior to the Protocol of San Salvador's entry into force, Art. 26 was raised as providing substantive rights to individuals only once by the Inter-AmCtHR, and in that instance, only in a separate opinion provided by one of the judges on the Court. Separate Vote of J. Rodolfo E. Piza Escalante, 'Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica", Inter-AmCtHR OC-4/84: 6....[T]he principles of "progressive development" contained in Article 26 of the Convention, although they refer literally to the economic, social, educational, scientific and cultural standards contained in the Charter of the Organization of American States, should ... be understood to be applicable to any of the "civil and political" rights established in the American Convention,

  • to the extent and in the ways in which they are not reasonably requirable in themselves, and vice versa, that the standards in the Convention itself may be understood to be applicable to the so-called "economic, social and cultural rights," to the degree and in the ways in which they are reasonably requirable in themselves (as occurs, e.g., with the right to strike). 57 At http://www.iachr.org/Basicos/basic5.htm. To date, the following countries have ratified the Protocol: Argentina, Costa Rica, Ecuador, El Salvador, Guatemala, Mexico, Panama, Paraguay, Peru and Uruguay. Bolivia, the Dominican Republic, Haiti, Nicaragua and Venezuela are signa- tories, and Brazil, Colombia and Suriname have submitted their acceptance. 58 ACHR, Art. 8. 59 ACHR, Art. 25. 60 ACHR, Art. 21; Ivcher Bronstein Case, Inter-AmCtHR, (Ser C) No.74 (6 February 2001); Five Pensioner" Case, Inter-AmCtHR, (Ser C) No.98 (12 February 2003) (explicitly rejecting the Commission's argument that Peru had violated Art. 26, stating: "147. Economic, social and cul- tural rights have both an individual and a collective dimension. This Court considers that their progressive development, ..., should be measured in a function of the growing coverage of eco- nomic, social and cultural rights in general, and of the right to social security and to a pension in particular, of the entire population, bearing in mind the imperatives of social equity, and not in function of the circumstances of a very limited group of pensions, who do not necessarily repre- sent the prevailing situation.") 61 Milton Garcia Fajardo et al., Case 11.381, Report on the Merits (2000), reprinted in Inter- AmCommHR OEA/ser./LN/11.114, doc 5 Rev. (2001) (claiming violations of rights to humane treatment (ACHR Art. 5), a fair trial (ACHR Art. 8), compensation (ACHR Art. 10), freedom of association (ACHR Art. 16), and judicial protection (ACHR Art. 25), para. 6). 62 Ibid., para. 26. 63 Ibid., paras. 28-30. 64 Ibid., para. 98.

  • 65 Ibid., paras. 95 and 101. 66 Ibid., paras. 90,102-9. 67 Advisory Opinion OC-5/8, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Inter-AmCtHR (13 November 1985) (ACHR, Arts. 13 and 29), para. 103. 68 Ibid., para. 106. 69 Inter-AmCtHR (Ser. C) No. 72 (2 February 2001). 70 Ibid., paras. 6, 88.

  • 71 Ibid., para. 88(e), (i)-(I), (p). 72 Ibid., para. 143. 73 Ibid., para. 173. 74 Ibid., para. 115. 75 ACHR,Art.lS. 76 Ibid., paras.148-50. 77 Ibid., para. 126. 78 Ibid., paras.127-9, quoting from ECtHR, Albert and Le Compte, 58 ECtHR (ser. A) (1983), para. 39. 79 Ibid., para. 131.

  • 80 Ibid., para. 134. 81 Ibid., para. 156. 82 Ibid., para. 158. 83 Ibid., para. 160. The Inter-AmCtHR dismissed the state's arguments that the law was necessary to safeguard the public order, finding that "such measures did not meet the requirement of being 'necessary in a democratic society' enshrined in Article 16(2) of the Convention," para. 172.

  • 84 Advisory Opinion OC-18, at http://www.corteidh.or.cr/serie_a_ing/serie_a_18_ing.doc. 85 Request for Advisory Opinion Submitted by the Government of the United Mexican States to the Inter-American Court of Human Rights, 5, at http://www.corteidh.or.cr/Serie a_°r62018_ ing.doc. 86 Protocol of San Salvador, done on 17 November 1988, Art. 3, at httP://www.worldpolicyorg/glo- balrights/treaties/achr-esc.html. 87 Am. Decl., Preamable; Report on the Situation of Haitians in the Dominican Republic, Inter- AmCommHR, Ann. Rep. 1991, OEA/Ser. L/V/IL81 Doc. 6 rev 1 (14 February 1992) (stat- ing, "International law recognizes the foreigner's legal personality and gives him its protection. Foreigners are considered the same as nationals in all things related to individual guarantees."); Advisory Opinion OC-4/84, Proposed Amendments to the Naturalization of Provision of the Constitution of Costa Rica, Inter-AmCtHR (19 January 1984), hereinafter 'Advisory Opinion OC-4/84'. 88 Advisory Opinion OC-4/84, para. 56, quoting ECtHR, Case relating to "Certain Aspects of the Laws on the Use of Languages in Education in Belgium" (Merits), Judgment of 23 July 1968, 34.

  • 89 Ibid., paras.54-8, at para. 57, (allowing Costa Rica the sovereign right to establish criteria in deter- mining to whom it will grant or deny nationality). The Fourth Progress Report of the Rapporteurship on Migrant Workers and their Families discussed the role of the principle of equality and non-dis- crimination at length. Specifically, the Report noted its role vis-a-vis labour matters, and rights to due process and judicial guarantees, noting: "every person has the right to a simple and prompt recourse or to any effective recourse before competent judges or tribunals that protects him/her against the violation of fundamental rights." Inter-AmCommHR (Ann. Rep. 2002), paras. 82 and 86. 90 Advisory Opinion OC -18, at the Request of the United Mexican States, at http://www.corteidh. or.cr/scrie-a-inz/serie-a-18-ing.doc. For a comprehensive analysis of OC-18, see Beth Lyon, "The Inter-American Court on Human Rights Defines Unauthorized Migrant Worker Rights for the Hemisphere: A Comment on Advisory Opinion 18", N.Y.U. Rev. Law & Soc. Change (Summer 2004, forthcoming). 91 Ibid., paras. 84-96. At para. 83, the Court provides the following explanation to differentiate between "discrimination" and "distinction": The term distinction will be used to indicate what is admissible, because it is reasonable, pro- portionate and objective. Discrimination will be used to refer to what is inadmissible, because it violates human rights. Therefore, the term "discrimination"will be used to refer to any exclu- sion, restriction or privilege that is not objective and reasonable, and which adversely affects human rights (emphasis added). 92 535 US 137 (2002). 93 Request for Advisory Opinion Submitted by the Government of the United Mexican States ..., para. 2. Mexico noted in its Request: "there are approximately 5,998,500 Mexican workers outside the national territory. Of these, it is estimated the 2,490,000 are undocumented migrant workers who become natural targets for individual and work related exploitation, owing to their particularly vulnerable situation in that their migratory status is irregular." At http://www. corteidh.or.cr/Serie_a_%2018_ing.doc.

  • 94 ACHR, Arts. 1 and 24; CCPR, Arts. 2 and 26; OAS Charter, Arts. 3(1) and 17,; Am. Decl., Art. II; UDHR, Art. 2(1). 95 Advisory Opinion OC-18, paras. 99-101: ... [T]his Court considers that the principle of equality before the law, equal protection before the law and non-discrimination belongs to jus cogens .... [D]iscriminatory treatment of any person, owing to ... national, ethnic or social origin, nationality, ... civil status, birth or any other status is unacceptable. 96 Ibid., para. 104. In noting the extension of the states' non-discrimination obligations to the pri- vate employment relationship, the Court stated: "the positive obligation of the State to ensure the effectiveness of the protected human rights gives rise to effects in relation to third parties (erga omnesJ." Ibid, paras.140-1, citing Veldsquez-Rodriguez Case, Judgment of 29 July 1988. Series C No. 4, para. 172. 97 Ibid., para. 106.

  • 98 Ibid., para. 119. 99 Ibid. 100 Ibid., para.135. The Court thus holds that the guarantee of the right to work, provided for in Art. 6 of the Protocol of San Salvador, does not apply to non-nationals. 101 Ibid., para. 136. In para. 134, the Court states: "the migratory status of a person can never be a justification for depriving him of the enjoyment and exercise of his human rights, including those related to employment. On assuming the employment relationship, the migrant acquires rights as a worker, which must be recognized and guaranteed, irrespective of his regular or irregular status in the State of employment. These rights are a consequence of the employment relationship." 102 Ibid., paras.149-56. 103 Ibid., para. 157. 104 ACHR, Art. 6. 105 ACHR, Art. 19, which provides: "Every 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."This right is further elaborated upon in Article 7(e) of the Protocol of San Salvador, which seeks from state parties guarantees in their internal legislation that serve as the "prohibition of night work or unhealthy or dangerous working conditions and, in general, of all work which jeopardizes health, safety, or moral, for persons under 18 years of age. As regards minors under the age of 16, the work day shall be subordinated to the provisions regarding compulsory education and in no case shall work constitute an impediment to school attendance or a limitation on benefiting from educa- tion received." 106 ACHR, Art. 16; OAS Charter, Art. 45(c) ("Employers and workers, both rural and urban, have the right to associate themselves freely for the defense and promotion of their interests, including the right to collective bargaining and the workers'right to strike, and recognition of the juridical personality of associations and the protection of their freedom and independence, all in accord-

  • ance with applicable laws."); Am. Decl., Art. XXII ("Every person has the right to associate with others to promote, exercise and protect his legitimate interests of a political, economic, religious, social, cultural, professional, labor union or other nature."); Protocol of San Salvador, Art. 8(1) (guaranteeing the right of workers to organize and to join the union of their choice, and the right of those unions to affiliate and function freely, and the right to strike); Baena Ricardo et al....; Milton Garcia Fajardo et al..... 107 ADHR, Art. XIV ("Every person who works has the right to receive such remuneration as will, in proportion to his capacity and skill, assure him a standard of living suitable for himself and for his family."); Protocol of San Salvador, supra note 78, Art. 7(a) ("Remuneration which guarantees, as a minimum, to all workers dignified and decent living conditions for them and their families and fair and equal wages for equal work, without distinction.") 108 ADHR, Art. XVI ("Every person has the right to social security which will protect him from the consequences of unemployment, old age, and any disabilities arising from causes beyond his control that make it physically or mentally impossible for him to earn a living."); Protocol of San Salvador, Art. 9 ("1. Everyone shall have the right to social security protecting him from the con- sequences of old age and of disability which prevents him, physically and mentally, from securing the means for a dignified and decent existence.... 2. In the case of persons who are employed, the right to social security shall cover at least medical care and an allowance or retirement benefit in the case of work accidents or occupational disease and, in the case of women, paid maternity leave before and after childbirth.") 109 Protocol of San Salvador, Art. 7(d) (providing everyone "shall enjoy that right [to work] under just, equitable, and satisfactory conditions, which the States Parties undertake to guarantee..., particularly with respect to ... d. safety and hygiene at work.") and Art. 7(f) (seeking from state parties guarantees of a "reasonable limitation of working hours, both daily and weekly. The days shall be shorter in the case of dangerous or unhealthy work or of night work.") 110 Ibid., para. 159. 111 Ibid., para. 60. 112 Beyond the scope of this article are several Inter-American case law strands that pertain to the intersection of border/migration policies and regional human rights. These strands include

  • the following: (1) the use of border checkpoints, airports and airplanes as sites for the detec- tion and arrest of activists, clergy and humanitarian workers, see, e.g., Hugo Spadafora Franco, Case 9726 (1987), Inter-AmCommHR, 110, OEA/ser. L/V.11.71, doc. 9, rev. 1 (1986) (Ann. Rep. 1986-198'�; Ita Ford et al., Case 7575 (1983), Inter-AmCommHR, 53, OEA/ser. LN/II. 61, doc 22 rev 1 (1983); Dr. Hector Oqueli and Lic. Gilda Flores, Case 10.518 Search Term End, Inter- AmCommHR 173, OEA/ser. L/V/11.81, doc. 6 rev. 1 (1992); Nelida llzucena Sosa de Forti and Five Children, Case 2271, Search Term End Inter- Am. C.H.R. 29, OEA/ser. L/V/11.47, doc. 13 rev. 1 (1979); (2) the use of deportation, including deportation of migrants to countries where it was known they would be tortured, as a tool for silencing activists, see e.g., Esteban Cabrera et al, Case 2291, Search Term End Inter-AmCommHR 48, OEA/ser. L/V/11.47, doc. 13 rev.1 1 (1979) (Annual Report 1978); Patrick Rice and Fdtima Edelmira Cabrera, Case 2450, Search Term End Inter- Am. C.H.R. 33, OEA/ser. L/V/11.47, doc. 13 rev.1 1 (1978) (Annual Report 1978); (3) expul- sion and exile of nationals, including refusal of re-entry, as tools for committing broader human rights violations, see, e.g., Jaime Insunza Becker and Leopoldo Ortega Rodriguez, Case 9269, Search Term End Inter-AmCommHR 37, OEA/ser. L/V/11.66, doc. 10 rev. 1 (1985); Nicanor Cuchallo Orellana, Search Term Begin Case 2723, Search Term End Inter-AmCommHR 62, OEA/ser. L/ V/11.47, doc. 13 rev. 1 (1979); Marya Lazo B., Inter-AmCommHR 94, OEA/ser. L/V/11.47, doc. 13 rev. 1 (1979); (4) refusal to allow nationals to leave the country, see, e.g., Clara Abrahante Boite, Case 3992, Inter-AmCommHR 91, OEA/ser. L/V/11.54, doc. 9 rev. 1 (1981); Raúl Hector Cano, Case 3482, Search Term End Inter-AmCommHR 23, OEA/ser. LNIII.54, doc. 9 rev 1 (1981). There are also numerous cases involving human rights violations against foreign activists, clergy, journalists, and humanitarian workers that do not - apart from the immigrant identity of the victims - otherwise appear to implicate the immigration laws and procedures of the state parties involved. See, e.g., Jurg Dieter Weis, Case 10.242, Inter-AmCommHR 154, OEA/ser. L/V/11.85, doc. 9 rev. (1994); Dagmar Ingrid Hagelin, Case 2484, Search Term End Inter-AmCommHR 55, OEA/ser. L/V/11.50, doc. 13 rev.1 1 (1978). Finally, there are a number of cases involving substan- tive asylum determinations under the ACHR Art. 22(7) and Am. Decl. Art. XXVII right to seek and enjoy asylum. See, e.g., Haitian Interdiction, Case 10.675, (1997), Inter-AmCommHR Rep. No. 51/96 (United States). The present article does not encompass these particular issues. While acknowledging that each of these issues might theoretically be pertinent for some economic migrants, this article is centered instead on the ordinary functioning of those immigration laws that - in the view of the authors - have the greatest impact on migrant workers. 113 Inter-American Commission on Human Rights Special Rapporteurship on Migrant Workers and their Families, Second Progress Report of the Special Rapporteurship on Migrant Workers and their Families in the Hemisphere, (Ann. Rep. 2000), OEA/Ser./LN/11.111, doc. 20 rev., para. 97(1) (2001). 114 See Advisory Opinion OC-18, paras. 118-119, stating that states may take "reasonable, objec- tive, proportionate" measures against undocumented migrants "that do not harm human rights." " (emphasis added).

  • 115 Inter-American Commission on Human Rights Special Rapporteurship on Migrant Workers and their Families, Second Progress Report of the Special Rapporteurship on Migrant Workers and their Families in the Hemisphere, (Ann. Rep. 2000), OEA/Ser./L/V/11.111, doc. 20 rev., para. 79 (2001). 116 Cheryl Monica Joseph, Case 11.092, Search Term End Inter-AmCommHR 32, OEA/ser. LN/ 11.85, doc. 9 rev. (1993), para. 33 (citing Annan Maroufidou v. Sweden., United Nations Human Rights Committee Communication No. R.13/58 (5 September 1979), UN Doc. Supp. No. 40 (A/36/40) (1981), 60). 117 120 Cuban Nationals and 8 Haitian Nationals Defained in the Bahamas, Petition 12.071 (2002), Inter-AmCommHR, Rep. No. 6/02 (Admissibility) (The Bahamas), para. 8. 118 Ibid., Decision Section, para. 1. 119 Juan Ramon Chamorro Quiroz, Case 11.495, Rep. No. 89/00, Inter-AmCommHR, OEA/Ser. L/V/11.111 doc 20 rev 221 (2000), Decision Section, para. 1 (Admissibility). 120 Ibid., para. 6.

  • 121 Ibid., para. 19. 122 See Order of the Inter-American Court of Human Rights of August 2000, Request for Provisional Measures in Favor of Haitian and Haitian-Origin Dominican Persons in the Dominican Republic, Inter-AmCtHR para. 1 (2000) (describing Inter-American Commission Case 12.271). 123 Inter-AmCommHR (Ann. Rep. 2001), Chap. 5a, para. 74. 124 See Order of the President of the Inter American Court of Human Rights of September 14, 2000, Provisional Measures Regarding the Dominican Republic, ofHaifian and Haitian-Origin Dominican Persons in the Dominican Republic, Inter-AmCtHR, para 2(a) (2000). 125 Ibid, paras. 2(d)-(f).

  • 126 Ibid, para. 2(b). 127 Ibid., Decision Section, paras.1-3. 128 Case 11.092, Pt. I, para. 1 (1993), Inter-AmCommHR, Rep. No. 27/93 (Admissibility) (Canada). 129 Ibid., Pt. VI, paras.1-31. 130 Ibid., Decision Section. 131 Juan Ramon Chamorro Quiroz ..., Decision Section and para. 6 . 132 Ibid, para. 10. 133 Ibid., para. 42.

  • 134 Dilcea Yean and Violet Bosica, Case 12.189, Inter-AmCommHR, OEA/Ser.L/V/ 11.111 doc 20 rev 3 (2001), para 14. 135 Ibid., para. 15. 136 Ibid., para. 10. 137 Ibid., paras. 11-13. 138 Ibid., Decision, para. 1. 139 Inter-AmCommHR (Ann. Rep 2001), chap. 5a, para. 79. 140 Confirmed in e-mail from Laurel Fletcher, Acting Clinical Professor of Law and Director, International Human Rights Law Clinic, University of California at Berkeley School of Law, to Beth Lyon, (27 May 2004) (on file with author). 141 See Ramon Martinez Villareal, Case 11.753 (2002), Inter-AmCommHR Rep. No. 52/02 (United States), para. 64; Advisory Opinion OC-16/99, The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law, Inter-AmCtHR, (1 October 1999), (Ser. A) No. 16, para. 121 (1999), hereinafter Advisory Opinion OC-16'. 142 See Germany v. United States of America (LaGrand Case), International Court of Justice (2001), at http://212.153.43.18/icjwww/idocket/igus/igusframe.htm and Order, Paraguay v. Unites ��� o/'�m�n'fa �Ca� Conffmtn� /� �nna Con���oM on ConjM/a� �/a�o�, International States of America (Case Concerning the Vienna Convention on Consular Relations), International Court of Justice (1998), at http://212.153.43.18/icjwww/idocket/ipaus/ipausframe.htm (examin- ing criminal convictions in the United States in which notification of consular protection had

  • not been provided, and holding that such convictions and sentences should be re-examined for prejudice as a result of the lack of notification). See also Mexico v. United States of America (Case Concerning Avena and Other Mexican Nationals), International Court of Justice (2004), at http://212.153.43.18/icjwww/idocket/imus/imusframe.htm (following Case Concerning the Sienna Convention on Consular Relations and LaGrand, while declining to rule on whether the right to notification of consular protection is an element of the human right to due process). 143 Advisory Opinion OC-16, at Opinion Section, para. 7. 144 Ibid. 145 See Ramon Martinez �7&r�Case 11.753 (2002), Inter.-AmCommHR, Rep. No.52/02 (United States). 146 Ibid., para. 84. 147 See Jesus Enrique Palderrama Perea, Petition 12.090, para. 9 (2002), Inter-AmCommHR Rep. No. 12/02 (Admissibility) (Ecuador); Roberto Moreno Ramos, Petition P4446/02, para. 2 (2003), Inter-AmCommHR Rep. No. 61/03 (Admissibility) (United States); Juan Carlos Chapparro fllvarez and Freddy Hernan Lapo Iniguez, Petitions 12.091 and 172/99, para. 18 (2003), Inter- AmCommHR Rep. No. 77/03 (Admissibility) (Ecuador). 148 Juan Ramon Chamorro Quiroz, Case 11.495, Rep. No. 89/00, Inter-AmCommHR, OEA/Ser. LN/IL111 doc 20 rev 221 (2000), Decision Section, paras. 10 and 11 (Admissibility). 149 At the time of publication the OAS entered the preparatory stages for a broader effort on behalf of the migrant workers. In December 2004, the OAS Permanent Council issued Draft

  • Guidelines for an Inter-American Program for the Promotion and Protection of the Human Rights of Migrants, Including Migrant Workers and their Families, OEA/Ser.G, CAJP/GT/ TM-18/04 (9 December 2004). Because of the recent nature of this development, the chapter does not address the new initiative in detail. 150 Inter-AmCommHR, Annual Report 2003, chapt. V, hereinafter 'Fifth Progress Report'. 151 See Inter-AmCommHR, Annual Report 1999, chapt. VI; Inter-AmCommHR, (Ann. Rep. 2000), chapt. VI, Inter-AmCommHR, (Ann. Rep. 2001), chapt. VI, Inter-AmCommHR, (Ann. Rep. 2002), chapt. VI. 152 Interview conducted by Sarah Paoletti with Dr. Freddy Gutierrez, Member, Inter-AmCommHR, Special Rapporteur on the Rights of Migrant Workers and their Families, Washington D.C. (April 2004). 153 See, e.g., Fifth Progress Report, para. 8.

  • 154 See IOM, World Migration Report (WMR) 2003, 25 (noting "no modern discussion of migration can be divorced from human rights, the development of countries of origin, the question of social cohesion and the future of the welfare state in host societies").

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