El Programa establece el seguimiento de su implementación por medio de un informe anual de las diferentes áreas de la Secretaría General y los Estados Miembros ante la CAJP sobre las acciones del Programa que han cumplido en el transcurso de cada año. Estos informes han sido incorporados al Plan de Trabajo del Secretario General, mencionado anteriormente, y calendarizadas conforme dicho Plan para el año próximo.
Por otro lado, el Programa requiere de una Sesión Especial anual para intercambiar mejores prácticas, información y nuevas propuestas que puedan incorporarse al mismo. A dichos efectos, la Comisión de Asuntos Jurídicos y Políticos llevo acabo una Sesión Especial el 16 de marzo de 2006, para intercambiar mejores prácticas, información y nuevas propuestas a incorporarse al Programa y que puedan producir recomendaciones sobre el tema de migrantes que se eleven a las Cumbres de las Américas.
De esta primer Sesión Especial destacaron las siguientes Conclusiones y Recomendaciones.
En primer lugar se concluyó resaltar la preocupación de los estados miembros respecto la protección de los derechos humanos de los migrantes, y se destaco el compromiso total y contundente por parte de todos los estados miembros, y Órganos, Organismos y Entidades de la OEA, para con el Programa Interamericano para la Protección de los Derechos Humanos de los Trabajadores Migrantes y Sus Familias.
Se concluyó agradecer los avances importantes y las actividades que han adelantado las diferentes entidades de la OEA sobre los temas relacionados con los Derechos Humanos de los Migrantes.
Se recomendó examinar la necesidad de separar la implementación de leyes migratorias de la implementación de la leyes laborales, asegurando que aquellas no impidan la aplicación de las protecciones de los trabajadores.
Se recomendó examinar, y en su caso reiterar, los principios internacionales de los Derechos Humanos que prohíben la discriminación en base al status de inmigrante, resaltando que si bien los Estados tienen el derecho de decidir en que condiciones admiten la entrada en su territorio a un extranjero, una vez que un trabajador se incorpora a una relación laboral en el mismo, el trabajador adquiere derechos que deben ser respetados y garantizados sin importar su situación de migración.
De concluyó además que los movimientos migratorios en América, al igual que a lo largo y ancho de la historia de la humanidad, se pueden entender en su totalidad solamente entendiendo que la migración esta en la naturaleza misma de las personas. Por lo tanto, es necesario que la Organización de los Estados Americanos y sus Estados Miembros dediquen especial énfasis respecto las condiciones de los trabajadores migrantes, destacando su calidad humana y des-enfatizando su calidad migratoria, resaltando así que la OEA no solo no puede permanecer indiferente a este fenómeno y a la protección de los derechos humanos de los migrantes, sino que es que debe jugar un papel de liderazgo en dichos esfuerzos.
Se recomendó buscar maneras de reducir el costo de la remesas, incluyendo la posibilidad de seguir el ejemplo de Colombia y otros países en la eliminación de impuestos sobre las remesas, y reducción de costos de envío, administrativos y de intermediación.
Se recomendó buscar maneras de capacitar a los funcionarios públicos en materia de migrantes.
Se recomendó investigar la forma de asegurar de que los migrantes tengan acceso a la educación en un ambiente libre de discriminación y se concluyó que la educación es derecho de todo niño y niña sin importar su condición migratoria o su idioma natal.
Se recomendó buscar maneras de difundir información sobre los medios legales para la migración y los peligros relacionados con el tráfico ilícito de migrantes y la trata de personas.
Se concluyó apoyar los foros regionales y subregionales que tratan el tema de migración, tales como la Conferencia Sudamericana de Migración, la Conferencia Regional de Migración (o Proceso Puebla), la OCAM.
Se recomendó destacar la importancia de la reinserción de migrantes a su retorno al país de origen por medio de programas de capacitación y la creación de oportunidades económicas y laborales en los países de origen.
Se recomendó la capacitación a los funcionarios de frontera y migración para la identificación de migrantes y refugiados dentro de los flujos migratorios mixtos.
Se recomendó que la calidad migratoria de un trabajador nunca puede o debe ser un punto cuesti0nado en caso de una reclamación.
Se recomendó adelantar investigaciones sobre la migración femenina y su impacto en la estructura familiar, así como investigaciones sobre los aspectos de género en el mercado laboral y el control migratorio, así como la necesidad de desarrollar políticas dirigidas a proteger a las mujeres migrantes y sus familias.
Se recomendó la necesidad de incorporar al Programa de Migrantes dentro de la Conferencia Interamericana de Ministros de Trabajo, quienes consideran a los trabajadores migrantes como uno de los grupos que merecen especial atención dentro de sus actividades.
Se recomendó buscar manera de asegurar los derechos electorales de los migrantes, incluyendo su voto en el exterior, la sistematización de las experiencias de voto electrónico en las Américas y promover el fortalecimiento de los procesos de identificación y registro electoral de ciudadanos en el exterior.
Se recomendó buscar medidas para asegurar el derecho a la salud (de conformidad con el Protocolo de San Salvador, artículo 10 y el Pacto Internacional de Derechos Económicos, Sociales y Culturales, artículo 12), especialmente con derecho de los trabajadores migrantes al acceso a bienes, medicamentos esenciales, servicios y tecnologías en salud y a la seguridad e higiene en el trabajo.
Se recomendó continuar con la tarea de recopilar y difundir la legislación, políticas y requisitos migratorios de los Estados Miembros.
Se recomendó seguir recopilando y difundiendo la información sobre la implementación del Programa Interamericano, así como de la legislación y tramites migratorios, en la página de internet de la Oficina de Derecho Internacional del Departamento de Asuntos Jurídicos Internacionales.
Se recomendó buscar maneras de facilitar el acceso a la información pública por parte de los migrantes, tanto respecto los derechos y tramites de ciudadanía, como a sus derecho humanos y laborales.
Se recomendó buscar maneras de asegurar no mezclar condiciones laborales con condiciones migratorias para promover cooperación y protección de todos los trabajadores dentro del marco normativo de los países miembros.
Se recomendó buscar maneras de asegurar la no discriminación de trabajadores migrantes, especialmente con respecto a la seguridad e higiene en el trabajo, a un salario mínimo digno y legal, horas laborales conforme el marco normativo local y la compensación por horas extra, así como los derechos de salud, compensaciones por accidentes y el derecho a la libertad de asociación.
Se recomendó buscar maneras de asegurar que los migrantes tengan acceso a la justicia y protección en caso de ser victimas de crímenes y abusos de derechos humanos y asegurar de que trabajadores indocumentados no se vean imposibilitados de recurrir a oficiales y cuerpos de policías locales por temor de que estos actúen como agentes de migración federal.
Se recomendó que se incorpore dentro del Programa Interamericano la manera de evaluar las mejores practicas que muestren los estados en cumpliendo de los principios de equidad y de no discriminación midiendo su desempeño en las áreas importantes mencionados en este resumen.
En efecto, esta labor para la protección de los derechos humanos de los migrantes se visualiza como un triangulo viviente, donde los tres puntos del mismo -- (1) el Programa Interamericano, (2) las Sesiones Especiales de la CAJP, y (3) el Plan de Trabajo del Secretario General -- se retroalimentan en una constante evolución de actualización de, y seguimiento a, las actividades concretas destinada a los Estados Miembros, a los órganos organismos y entidades de la OEA, y demás actores del Programa Interamericano:
Plan de Trabajo Sesiones Especiales
del Secretario General de la CAJP
Sarah Paoletti – University of Pennsylvania Law School / Rebecca Smith –
National Employment Law Project
The Inter-American Program for the Promotion and Protection of the Human Rights of Migrants, Including Migrant Workers and their Families, deserves to be commended for its focus in taking a rights-based approach to addressing the challenges presented by global migration. As this Program develops and moves forward, it will be critical to recognize the central role of labor and employment rights of all migrant workers, regardless of their migration status, in guaranteeing the fundamental human rights of migrants. There is a clear need for more effective enforcement of labor and employment rights to eliminate exploitation of migrant workers – exploitation which, when permitted, has a negative impact not only on the rights of the migrants themselves, but on all workers, as well as on the communities in which they live and from which they come.
This submission seeks to provide some affirmative proposals for ensuring that migrant workers are not exploited, highlight the strengths of the pending Draft Resolutions currently pending as part of the work of the Inter-American Program for the Promotion and Protection of the Human Rights of Migrants, Including Migrant Workers and their Families, and raise some areas of concern for consideration.
Sources of Rights for Migrant Workers and their Families
The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families provides a valuable enunciation of specific rights that should be afforded to all migrant workers, and is careful to do so in a framework that balances the sovereign right of all States to regulate the entry of non-citizens with their obligations to respect the human rights and dignity of all persons, recognizing special rights that shall be accorded certain categories of migrants. As such, it serves as a useful reference point for work within the Americas aimed towards achieving the same goal – respect for the human rights of all migrant workers and their families. Clearly, any resolution pending before this Committee, must address – as the Draft resolutions currently do – encouragement for all States to consider ratification of this important Convention, and to undertake steps aimed towards the recognition of all rights enunciated therein.
Because no major receiving State of migrants has ratified the Convention, however, it is important also to look to other sources of rights that are binding on all member States of the OAS in developing a comprehensive set of principles underlying migration programs and policies.
The Inter-American Court of Human Rights’ Advisory Opinion on the Juridical Condition and Rights of Undocumented Migrants (Opinión Consultiva 18)1 issued on September 17, 2003, provides a clear statement of the rights to be afforded to all migrant workers, regardless of migration status. The Court clearly identified the principle of equality and non-discrimination as a jus cogens norm resulting in affirmative obligations of all States to guarantee an expansive set of labor rights for all migrant workers, authorized and unauthorized alike.2
OC-18 is a clear articulation of pre-existing obligations on all OAS member states under Article 2 of the American Declaration on the Rights and Duties of Man, Articles 2 and 26 of the International Covenant on Civil and Political Rights,3 and Articles 24 and 25 of the American Convention on Human Rights vis-à-vis migrant workers. Its importance in the protection of the human rights of all migrants has been recognized in the observations and recommendations of the annual report from the Inter-American Court, approved by the OAS General Assembly on June 8, 2004,4 and has also been recognized by the Human Rights Commission of the United Nations High Commission on Human Rights in resolution 2005/47.5 OC-18 merits similar recognition and an explicit endorsement in the final Resolution agreed upon by this Committee regarding the Human Rights of All Migrant Workers and Their Families.
General Comments vis-à-vis Pending Resolutions
With regard, specifically, to the most recent draft Resolution submitted by the Delegation of the United States in January 2007, while it is within every State’s sovereign right to regulate immigration, that sovereign right must be balanced against a State’s obligations under international human rights law, international humanitarian law, and international refugee law, as recognized in the earlier Draft Resolution submitted by the delegation of Mexico in May 2006. As such, while it is within the authority of member States to regulate the entry and stay of non-citizens, and to determine the status of migrants, States’ authority to determine the “effect of that status” vis-à-vis certain legal rights, as well as economic, social and cultural rights, are constrained by the principle of equality and non-discrimination – as discussed in OC-18.
Furthermore, in a Resolution drafted for the protection of the human rights of all migrant workers and their families, we would urge this Committee to focus on those rights, rather than to confuse a rights-based approach with the rhetoric surrounding the political debate on immigration in receiving countries, and avoid language that pits migrants against other low-income families and individuals.6 Not only are these statements counter-productive in trying to develop a cooperative approach towards the recognition of the human rights of migrants, they are not supported by the evidence. A recent report by the National Employment Law Project provides information on numerous studies and judicial opinions finding that the presence of immigrant workers (both documented and undocumented) has little to no effect on the low-skilled and lower-paid workers.7 Rather than focusing on the migrants, greater attention needs to be given to equal and strenuous enforcement of existing labor and employment laws under domestic legislation, as well as international labor rights standards.
Best Practices to Ensure the Rights of All Migrant Workers
The Inter-American Program and the OAS Member States have rightly paid attention to the global problem of trafficking, and the need to both investigate and prosecute parties responsible for the trafficking of humans, as well as to provide protection and assistance to the victims of trafficking. In order to fully redress trafficking, however, it is not enough to focus on crimes that rise to the level of trafficking alone, but also to address smuggling of migrants and the crimes that are committed upon migrants in the course of their being smuggled, as well as the environment of abuse and exploitation that can exist in all workforces predominated by migrants. Without investigating and addressing the underlying causes that allow for trafficking to occur and create an environment permissive of abuse of varying degrees of severity, migrant workers will remain vulnerable to the same harms as those who are abused by their smugglers or fall prey to trafficking. The prosecution traffickers and the criminalization of smuggling must be undertaken in conjunction with enforcement of all labor and employment rights of all migrants.
This presentation seeks simply to highlight several best practices that can be undertaken by States to ensure the protection of rights of all migrant workers, and can by extension all workers, citizen and non-citizen alike. Many of these practices were outlined in greater detail in our submission for last year’s Special Meeting, with attention given specifically to both good and bad practices arising out the United States’ treatment of unauthorized migrants. Below we seek to extract basic principles that arise out of those experiences that can have application throughout the Americas.
Sanctions for Abusive Employers
Rather than focusing on worksite enforcement aimed towards identifying and removing all migrants in an irregular status, resources should be devoted to sanctioning abusive employers. This means more emphasis on enforcement of workplace violations, with meaningful penalty structures, adequate enforcement personnel, and more focus on industries that are known violators of wage and hour laws (such as construction, domestic work, home health care, hotel and restaurant, and childcare workers), so that all workers receive the wages they are entitled to under current law. In addition to wage and hour violations, meaningful enforcement on health and safety in the workplace requires emphasis on targeted sector-specific enforcement (such as agriculture, food processing and construction), higher penalties for employers who put their worker health and safety at risk, and strong anti-retaliation protections for those who refuse unsafe work.
Furthermore, companies should not be allowed to evade legal responsibility by contracting it away to labor brokers (a problem that is prevalent with the migrant labor pool), or by misclassifying workers as “independent contractors” who may not be covered by various wage and hour provisions.
Ensure Equal Rights and Remedies for All Workers Regardless of Migration Status
In keeping with the principle of equality and non-discrimination, as provided for in the American Declaration on the Rights and Duties of Man, the American Convention, and the International Covenant on Civil and Political Rights, all workers, regardless of migration status, state parties cannot discriminate against migrants, regardless of their immigration status, in the affordance of rights and benefits under the law. While a State may distinguish among authorized and unauthorized workers with respect to who may legally work – as part of a State’s sovereign right to govern migration – once a migrant is employed, a State party must ensure that migrant is not discriminated against. This applies in the area of citizenship discrimination (in addition to race, national origin, ethnicity and gender-based discrimination), social security or pension benefits, and all other labor and employment laws.
Not only must States work to ensure that workers are not discriminated against in the actual text of the laws designed to protect workplace rights, States must also take affirmative steps to ensure that all workers, regardless of their migration status, have equal access to all remedies available under the law. Rights without a remedy are meaningless. And individuals without legal representation are often denied both rights and remedies, as the judicial system remains inaccessible to those without legal representation, in addition to interpreters and translators to assist in their communication. Failure to ensure equal rights and equal access to equal remedies to all workers, both in a regular and irregular status, not only violates the principle of equality and non-discrimination, it also undermines the efficacy of the labor, employment and health and safety laws as applied to all workers.
Confidentiality and (non) Cooperation Policies of Administrative Enforcement Agencies
Worker advocates in the US believe that the only way to adequately enforce labor rights of all workers is to establish a clear “firewall” between labor enforcement and immigration enforcement; that is, to make it clear that a workers’ immigration status is never a subject of questioning in a labor dispute. In an attempt to ensure that “firewall” is in place, they have developed a number of tools within the court and administrative systems. In general, the policies represent a step forward in protecting migrant workers’ access to remedies for violation of labor rights. To be truly meaningful, however, a specific policy that governs the rights of all workers in all situations should be developed. Such a policy should clearly delineate the distinct responsibilities of the federal agency charged with enforcement of immigration laws, and those agencies charged with enforcement of labor and employment laws, including health and safety laws.
Direct workplace enforcement against undocumented workers at their place of employment, the misuse by employers of government information stating that a workers’ Social Security Number in the United States, for example, does not match government records, and the series of databases that are being used and developed to cross-match employee information in a wide variety of contexts, work against efforts to ensure the workplace rights of all workers. A system of focusing immigration enforcement in the workplace creates confusion among immigrant workers with respect to whether or not they can expect confidentiality if they have a complaint for violation of labor rights, and trust state and federal agencies whose purpose it is to ensure employers’ compliance with all labor laws.
Protections From Disclosure of Immigration Status in Formal Legal Proceedings
In the United States, when formal legal claims are filed in court, both parties are allowed to ask a broad range of questions, and ask for a broad range of documents, from the other party in a process called “discovery.” The subject matter of discovery covers anything relevant to a claim or defense, or anything that might become relevant. Attorneys representing employers in claims brought by migrants are increasingly using the discovery process to inquire into a plaintiff’s immigration status, ostensibly to obtain information that is allegedly relevant to the damages claimed. These measures clearly serve to intimidate the plaintiff into dropping the charges altogether, due to fear of retaliation and potential immigration consequences. They also have a chilling effect on workers who are forced to endure a range of abusive workplace conditions, because they fear that if they complain, they and/or their colleagues will be deported. The result is that in a legal system that relies on individuals to step forward as the enforcer of labor and employment law violations, unscrupulous employers can wield their workers’ fear as a shield towards liability.
Susan Martin – Georgetown University
Promoting the Rights of International Migrants The legal and normative framework on international migration includes binding international law as well as non-legally binding best practices and principles. Certain international instruments affecting management of migration have been widely ratified (for example, 145 States have ratified the 1951 Convention and/or the 1967 Protocol Relating to the Status of Refugees). Others have entered into force with relatively few parties (for example, only 27 States, all principally source countries of migration, have ratified the UN Convention on the Protection of All Migrant Workers and Members of Their Families).
Existing international law provides useful contributions to a normative and legal framework regarding:
The powers and responsibilities of individual States to manage movements of people across their borders,
The rights and responsibilities of international migrants, and
State cooperation in managing international movements of people.
Nevertheless, the gaps in international law and norms remain, particularly related to migration for family and economic reasons.
States possess broad authority to regulate the movement of foreign nationals across their borders. Although these authorities are not absolute, States exercise their sovereign powers to determine who will be admitted and for what period. In support of these powers, States enact law and regulations to govern issuance passports, admissions, exclusion and removal of aliens, and border security. States vary in the types of laws and regulations adopted, with some being more restrictive than others are, but all States adopt rules that govern entry into and exit from their territories.
The authority of States is limited by certain rights accorded foreign nationals in international law. Non-nationals enjoy all of the unalienable rights applicable in international law. The International Covenant on Civil and Political Rights (ICCPR) defines such basic rights of all persons as: the right to life, liberty and security; the right not to be held in slavery or servitude; the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment; the right not to be subjected to arbitrary arrest, detention or exile; the right to marry and to found a family. Additional rights are conveyed by the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Rights of the Child (CRC).
More specifically related to movements of people across international borders are provisions granting rights in the Convention Regarding the Status of Refugees, the Convention against Torture, the Convention on the Rights of All Migrant Workers and Members of their Families, and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children and the Protocol against the Smuggling of Migrants by Land, Sea and Air, both of which supplement the United Nations Convention against Transnational Organized Crime.
In the Americas, the American Convention on Human Rights provides a right to human treatment (Article 5), a right to seek and be granted asylum (Article 22), a right to equal protection (Article 24), and a right to judicial protection (Article 25) that applies to non-nationals. The Inter-American Commission on Human Rights and the Inter-American Court on Human Rights were established pursuant to the American Convention on Human Rights. The Inter-American Commission on Human Rights (IACHR) monitors the status of the human rights of migrants through its own Special Rapporteur on Migrant Workers and their Families.
Most of the international conventions and protocols have been ratified by a wide range of States, but the Migrant Rights Convention has been ratified by only 34 States. No major destination country of international migrants is among its State parties although such States as Mexico, which is source, transit and destination country, have become parties to the Convention. The obstacles are both practical and political.
On the practical side, the MWC is extensive and complex, raising technical questions as well as financial obligations on State parties.8 For example, Article 65 of the Convention requires States Parties “to maintain appropriate services to deal with questions concerning international migration of workers and members of their families. Their functions shall include, inter alia:
(a) The formulation and implementation of policies regarding such migration;
(b) An exchange of information, consultation and co-operation with the competent authorities of other States Parties involved in such migration;
(c) The provision of appropriate information, particularly to employers, workers and their organizations on policies, laws and regulations relating to migration and employment, on agreements concluded with other States concerning migration and on other relevant matters;
(d) The provision of information and appropriate assistance to migrant workers and members of their families regarding requisite authorizations and formalities and arrangements for departure, travel, arrival, stay, remunerated activities, exit and return, as well as on conditions of work and life in the State of employment and on customs, currency, tax and other relevant laws and regulations.
Further, although almost all States have some emigration and immigration, States with relatively low levels of migration may see no particular reasons to ratify the Convention.
On the political level, the Convention raises basic questions about State sovereignty, particularly regarding the capacity of States to deter irregular migration. Even though the Convention requires States Parties to cooperate in curbing irregular migration and returning those without authorization to remain in a destination State, many receiving countries are concerned that the rights granted to irregular migrants will hinder their ability to control such movements. Some States are concerned that specifying the rights of irregular migrants will serve as a magnet, drawing them to their territory. A Dutch government paper on the Convention explains the reluctance of the Netherlands to ratify: “The granting of certain social and economic rights on the part of the state is considered to be more of an encouragement for illegal residence and employment than a deterrent.”9
Even with regard to documented migrants, “the Convention’s central concept of non-discrimination interferes with explorations of other forms of temporary immigration in which this principle would not be fully abided by.”10 In effect, States often see a trade-off between the number of migrants admitted and the generosity of rights bestowed upon them. Providing rights equivalent to nationals, particularly when such rights entail financial obligations on the part of receiving States, may severely limit the number of migrants to be admitted. Otherwise, States fear, there will be a public backlash against migrants who are perceived as being costly to taxpayers. Even when there is little factual basis to such charges, and migrants can be seen to be contributing to the economy, publics may perceive migrants to be competitors for limited jobs and resources.
Some States see no need to ratify the Convention, arguing that other human rights instruments already provide protection of the most fundamental rights outlined in the Migrant Rights Convention. Or, they argue, national laws provide adequate protection. Other States, however, see the MRC as promoting rights not specified elsewhere and not necessarily in their national interest. The Dutch paper discussed above holds that the MRC “contains a number of new provisions that were not previously included in broadly ratified treaties.11 In particular, the Dutch paper argues, the Convention grants a right to family reunification not only to legally resident migrants but also to illegally resident ones.12
Advocacy at the national and local levels appears to be the most likely inducement to State ratification or, in its absence, greater protections for migrant rights. To the extent that there is a vocal and well-organised constituency in support of migrant rights, States are more likely to overcome their concerns about the Convention. States may also re-think ratification if the provisions in the Convention relating to inter-state cooperation in combating irregular migration can be operationalized into concrete actions. States may be more willing to extend rights to migrants if they believe they are able to effectively control who and how many persons migrate.
Policies and programs at the national level can be effective ways to protect the rights of migrants. The better-informed workers are prior to migrating, the better able they are to assert their rights. Access to language training courses in destination countries will also help migrant workers to learn of and assert their rights when employers or family members violate them. Monitoring recruitment agencies and employers is essential to the protection of migrant workers. When abuses occur, legal representation for migrant workers can help them fight against discrimination, sexual harassment, lost wages and other violations of their labour rights. Programmes that provide shelter and social services to migrant workers who have experienced abuse are essential to protecting their rights. Migrant workers who decide to return home after escaping abusive conditions may also need assistance in repatriation and reintegration. Consular protection can play an important role in ensuring that migrant workers do not face abusive situations. Consular officers can monitor the security of migrant workers in potentially vulnerable positions, using their diplomatic positions to engage the host country in interceding in favour of the migrant worker.
A weak but growing body of international law and effective practices focus on international cooperation in managing international migration, including protection of migrant rights. The Trafficking and Smuggling Protocols set out specific areas in which State Parties agree to cooperate with each other. The protocols emphasize information exchange, training, public information and other joint efforts to prevent smuggling and trafficking. Implicit in this model is the recognition that unilateral actions on the parts of States will be ineffective in addressing transnational problems that affect all countries.
The 1951 UN Refugee Convention and regional agreements on refugees promote international cooperation as a way to share responsibility for assisting, protecting and finding solutions for persons who cannot rely on their own governments. Again, implicit in this approach is the need for international cooperation to address a phenomenon that is beyond the capacity of any one country. The forms of international cooperation include the sharing of financial resources and the potential movement of refugees and others in need of protection from one country to another. A key role is assigned to the United Nations, particularly the UNHCR, not only in protecting the rights of the refugees but also promoting cooperation among States.
Weak institutional arrangements make international cooperation in promoting the rights of migrants all the more difficult to achieve and retard the development of effective legal and normative frameworks. To date, much of the consensus building has taken place through ad hoc, informal mechanisms such as the Berne Initiative, at the international level, and the various consultative mechanisms established at the regional level, including the Regional Migration Conference in the Americas.
Moving from the current arrangements to a more robust international regime may be premature, however. While there has been progress in setting out common understandings, there continue to be fundamental disagreements among States as to causes and consequences of international migration and the extent to which it is in the interests of States to liberalize or restrict flows of migrants. This situation contrasts sharply with the general consensus that governs movements of goods, capital and services—that it is in the ultimate interest of all States to lessen barriers to the movements of these factors.
Yet, there is growing consensus that a well-regulated and more comprehensive framework for managing international migration would be in the best interest of both States and migrants. There is no inherent conflict between policies that protect State interests and security and those that protect the rights of migrants. In fact, to be sustainable, international migration laws and policies must address a wide range of issues, including but not limited to the following:
Protection of the rights of migrants and their families, including persons who have been smuggled or trafficked;
Protection of refugees and durable solutions to refugee problems;
Prevention of human smuggling and human trafficking and protection of survivors; and
Return, readmission and reintegration of persons who do not have, or no longer have, authorization to remain in a destination country.
Janie Chuang – Washington Collage of Law – American University
Trafficking versus Migrant Smuggling Legal Definition of “Trafficking in Persons” “… 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 purposes 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.” Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organized Crime, Article 3(a).
Legal Definition of “Smuggling of Migrants” “… the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident.” Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the UN Convention against Transnational Organized Crime, Article 3(a).
Coercion required (any initial consent is nullified by coercive, deceptive, or abusive actions of traffickers)
Not afforded victim status under international law
Sarnata Reynolds – Amnesty Internacional – Refugee Program
PROTECTING REFUGEES THROUGH THE RECOGNITION
OF MIGRANTS’ RIGHTS The Refugee Program of Amnesty International USA would like to thank the Organization of American States for the invitation to share with you some observations and proposals in support of the Inter-American Program for the promotion and protection of the human rights of migrants, and refugees as a sub-set of that population.
Amnesty International is a nonprofit, nongovernmental organization that was founded in 1961. It is a worldwide movement of almost 2 million members, with more than 350,000 throughout the United States, Latin America and the Caribbean.
My presentation has three parts. First, I would like to explain Amnesty International’s position on the rights of migrants and refugees. Second, I would like to provide some recommendations for how the Organization of American States and its partners may take a more meaningful role in developing and protecting the rights of refugees specifically, and migrants more generally. Finally, I would like to point out eight key steps in furtherance of all migrants’ human rights.
Amnesty International’s Position on Migrants’ Rights
Every day people make decisions to leave their homes, communities and countries. Some leave because they are afraid - afraid for their lives, and for the lives of their children and loved ones. Others leave because their social or economic situation has compelled them to do so.
The promise of a better standard of living for their families pushes many people into irregular migration, if legal avenues are not available to them. Every year thousands die while trying to reach other countries.
Amnesty International is concerned about the human rights of all migrants. AI looks at the "life-cycle" of migration: the decision to leave the country of origin; the migratory journey, including time spent in countries of transit; arrival and stay in the country of destination; and possible return back to the country of origin. Through this life-cycle, AI focuses on the situations during which migrants are most vulnerable to abuse, and on those individuals or groups of individuals most at risk – including refugees, irregular, or undocumented migrants, migrant children and migrant women.
Migrants are sometimes characterized by politicians and the media as criminals, economic burdens, security threats and even a risk to public health. The reality is, however, that many economies have come to rely on migrants who are prepared to work in degrading and dangerous jobs with little security and low wages.
This unrecognized, unappreciated, and undervalued workforce now drives a significant part of the global economy. A migrant worker is increasingly viewed as a commodity or a unit of labor, a "temporary service provider" who can be shuttled around the world at will. This attitude lacks any recognition of a migrant worker’s human rights.
Developing and Protecting the Rights of Refugees and Migrants
In the year 2006, many OAS member states took significant steps to develop national and regional approaches toward educating immigration officials on migrant issues and providing avenues to protect refugees at and within their borders.
Still, much work must be completed to ensure that refugees are identified and provided with the assistance they require to begin the process of healing and integration in their host countries. Moreover, countries must ensure that migrants flowing in are provided with opportunities to gain legal status and avoid exploitation, and that those being deported are afforded a fair hearing prior to their departure.
If apprehended at the United States border, for instance, migrants, including refugees and asylum seekers, are often detained and denied the ability to communicate with family, friends or legal counsel before their expedited removal.13 In theory, migrants who fear return to their home countries are provided with the opportunity to state a claim for protection, but in reality this is often not the case.14 While OAS member states have the authority to determine how best to monitor and secure their borders, migrants should not be shuffled back and forth in a demeaning, and sometimes dehumanizing, fashion.
Similarly, determining how to best monitor and control the movement of migrants while preserving their rights under international law should not be lost in a larger, and different, discussion of national security issues.
For example, through swift passage of anti-terrorism laws in the United States, victims of terrorist organizations and armed militias are labeled material supporters of terrorism, and therefore found ineligible for protection, precisely because they were targeted, tortured and enslaved by the very groups the United States is attempting to exclude.
Having been forced to provide support—no matter how minimal -- does not exempt a person from being found ineligible to enter the United States as a refugee or asylum seeker. As a result, many Colombians forced at the threat of torture or death to provide money to armed militias are identified as material supporters of terrorism and denied the opportunity to resettle in the United States.
Denying protection to refugees and asylum seekers because they were victimized by terrorist organizations does not advance our shared values and violates our obligations under international law.
At the heart of Amnesty International’s agenda for migrants’ rights is a call to treat all migrants with full respect for their human rights and human dignity. Strategies are needed to counter the misinformation, prejudice and fear that all too often characterize discussion of migration issues amongst decision-makers and the general public. Raising public awareness on the basis of well-informed and balanced arguments is a vital part of the human rights agenda on migrants’ rights. A successful campaign also requires coalitions to be built with migrants and their communities, non-governmental organizations, and others working to protect and promote migrants’ rights.
3. Eight Key Priorities Amnesty International calls on the OAS and its partners to concentrate on eight key priority areas when promoting all migrants’ rights:
1. Call for migration policies that protect human rights.
2. Focus on those migrants most at risk – refugees, irregular migrants, migrant women and migrant children.
3. Call for more research and better data on the movement of people and the particular obstacles they face when crossing borders for protection, work and other reasons.
4. Call for ratification and implementation of core human rights and labor rights treaties, in particular the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (the Migrant Workers’ Convention).
5. Demand greater accountability of state and non-state actors at international, regional and national levels.
6. Place migrants and their communities at the centre of debates on migration; recognize and ensure their role in formulating and implementing strategies to protect their rights.
7. Protect human rights defenders working to protect and promote the human rights of migrants.
8. Increase public awareness of migrants’ rights and migrants’ positive contributions to society.
Victoria Napky – Instituto Interamericano de Derechos Humanos
UNA MIRADA REGIONAL CON ENFOQUE DE DERECHOS HUMANOS