152.                   In its 2000 annual report, the Rapporteurship devoted a special section to the problem of xenophobia, racism, and discrimination against migrant workers and their families in the Americans.  The analysis found that the situation of migrant workers and their families in this hemisphere is cause for considerable concern.  The report mentioned that although incidents of xenophobia, racism, and discrimination against migrant workers and their families, and against aliens in general, are common, little attention tends to be given to the problem in most of the countries in the region because there is an absence of any sincere examination and open discussion of the matter.  The United States presents something of a paradox.  Racial discrimination against citizens has been the subject of a long debate, yet xenophobia has received little or no attention.  The question has been even more clearly ignored in the countries of Latin America and the Caribbean.  The 2000 report also said that the Regional Meeting of Experts for Latin America and the Caribbean on Economic, Social and Legal Measures to Combat Racism with Special Reference to Vulnerable Groups reached the conclusion that in most of Latin America and the Caribbean, the existence of racial discrimination and xenophobia is denied or said to be minor in scope by both government and the societies at large.  This important meeting also pointed out that in the region there is racial discrimination and intolerance aimed at groups such as indigenous peoples, African-Americans and Mestizos, against minorities such as Jews and gypsies, and against vulnerable groups such as women, children, the handicapped, youth and the elderly.[98]

153.                   In light of the recent World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, held in Durban, South Africa from August 31 to September 8, 2001, the Rapporteurship deems it relevant briefly to comment on the conclusions that this important forum reached on discrimination, racism and xenophobia that targets migrant workers and their families around the world.  This important event was marred somewhat by political discussions on the Arab-Israeli problem which led to the withdrawal of certain delegations.[99]  However, in the opinion of the Rapporteurship, so far as migrant workers are concerned, this forum helped to disseminate and sow awareness of many of the problems related to racism, discrimination, and xenophobia that these people endure.  This opinion is shared by Gabriela Rodríguez, the United Nations Special Representative on Migrant Workers, who in her latest report underlines the importance that the aforementioned Conference had in promoting an protecting the rights of migrant workers and their families. [100] 

154.                   The contribution of the Durban meeting is clear from the Conference Declaration and Programme of Action, which deal extensively with the problem and contain a large number of clauses relating to the situation of victims of discrimination, racism, and xenophobia against migrant workers and their families.  Although these instruments are not binding upon states, they clearly identify the problems that affect migrant workers and other migrants, suggest constructive ways to protect these people, and advise the states of their duties and obligations.  The Declaration and the Programme of Action are exhaustive in scope and address countless problems that affect migrant workers all over the world, including the Americas.  The Rapporteurship wishes to underscore the immense usefulness of these instruments, inasmuch as they represent a solid framework that will undoubtedly serve as a point of reference for monitoring and protection activities

155.                   Following, the report presents extracts of the Declaration and the Programme of Action of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, including all the paragraphs that contain provisions concerning migrant workers and other migrants and which, therefore, are important for the activities of the Rapporteurship.



156.                   Paragraph 12: We recognize that interregional and intraregional migration has increased as a result of globalization, in particular from the South to the North, and stress that policies towards migration should not be based on racism, racial discrimination, xenophobia and related intolerance;


157.                    Paragraph 16: We recognize that xenophobia against non-nationals, particularly migrants, refugees and asylum-seekers, constitutes one of the main sources of contemporary racism and that human rights violations against members of such groups occur widely in the context of discriminatory, xenophobic and racist practices; 

Immigration policies

158.                   Paragraph 38: We call upon all States to review and, where necessary, revise any immigration policies which are inconsistent with international human rights instruments, with a view to eliminating all discriminatory policies and practices against migrants, including Asians and people of Asian descent;  

Contribution of Migrants

159.                   Paragraph 46: We recognize the positive economic, social and cultural contributions made by migrants to both countries of origin and destination; 

Legal Framework for Migration Policies

160.                   Paragraph 47: We reaffirm the sovereign right of each State to formulate and apply its own legal framework and policies for migration, and further affirm that these policies should be consistent with applicable human rights instruments, norms and standards, and designed to ensure that they are free of racism, racial discrimination, xenophobia and related intolerance;

Acts of Racism against Migrants: Responsibility of the State to Provide Protection

161.                   Paragraph 48: We note with concern and strongly condemn the manifestations and acts of racism, racial discrimination, xenophobia and related intolerance against migrants and the stereotypes often applied to them; reaffirm the responsibility of States to protect the human rights of migrants under their jurisdiction and reaffirm the responsibility of States to safeguard and protect migrants against illegal or violent acts, in particular acts of racial discrimination and crimes perpetrated with racist or xenophobic motivation by individuals or groups; and stress the need for their fair, just and equitable treatment in society and in the workplace; 

Creation of Adequate Conditions

162.                   Paragraph 49: We highlight the importance of creating conditions conducive to greater harmony, tolerance and respect between migrants and the rest of society in the countries in which they find themselves, in order to eliminate manifestations of racism and xenophobia against migrants.  We underline that family reunification has a positive effect on integration and emphasize the need for States to facilitate family reunion; 


163.                   Paragraph 50: We are mindful of the situation of vulnerability in which migrants frequently find themselves, owing, inter alia, to their departure from their countries of origin and to the difficulties they encounter because of differences in language, customs and culture, as well as economic and social difficulties and obstacles to the return of migrants who are undocumented or in an irregular situation;

Areas of Racial Discrimination

164.                   Paragraph 51: We reaffirm the necessity of eliminating racial discrimination against migrants, including migrant workers, in relation to issues such as employment, social services, including education and health, as well as access to justice, and that their treatment must be in accordance with international human rights instruments, free from racism, racial discrimination, xenophobia and related intolerance; 

Creation of Stereotypes

165.                   Paragraph 89: We note with regret that certain media, by promoting false images and negative stereotypes of vulnerable individuals or groups of individuals, particularly of migrants and refugees, have contributed to the spread of xenophobic and racist sentiments among the public and in some cases have encouraged violence by racist individuals and groups; 


Combating racist acts and other manifestations of intolerance

166.                   Paragraph 24: Requests all States to combat manifestations of a generalized rejection of migrants and actively to discourage all racist demonstrations and acts that generate xenophobic behavior and negative sentiments towards, or rejection of, migrants;

Monitoring and Protection

167.                   Paragraph 25: Invites international and national non-governmental organizations to include monitoring and protection of the human rights of migrants in their programmes and activities and to sensitize Governments and increase public awareness in all States about the need to prevent racist acts and manifestations of discrimination, xenophobia and related intolerance against migrants;

Promotion of Human Rights of Migrants

168.                   Paragraph 26: Requests States to promote and protect fully and effectively the human rights and fundamental freedoms of all migrants, in conformity with the Universal Declaration of Human Rights and their obligations under international human rights instruments, regardless of the migrants' immigration status;

Education and Information Campaigns

169.                   Paragraph 27: Encourages States to promote education on the human rights of migrants and to engage in information campaigns to ensure that the public receives accurate information regarding migrants and migration issues, including the positive contribution of migrants to the host society and the vulnerability of migrants, particularly those who are in an irregular situation;

Family Reunification

170.                   Paragraph 28: Calls upon States to facilitate family reunification in an expeditious and effective manner, which has a positive effect on integration of migrants, with due regard for the desire of many family members to have an independent status;

Concrete Measures

171.                   Paragraph 29: Urges States to take concrete measures that would eliminate racism, racial discrimination, xenophobia and related intolerance in the workplace against all workers, including migrants, and ensure the full equality of all before the law, including labour law, and further urges States to eliminate barriers, where appropriate, to:  participating in vocational training, collective bargaining, employment, contracts and trade union activity; accessing judicial and administrative tribunals dealing with grievances; seeking employment in different parts of their country of residence; and working in safe and healthy conditions; 

Development, Implementation and Review of Policies

172.                   Paragraph 30: Urges States:

a. To develop and implement policies and action plans, and to reinforce and implement preventive measures, in order to foster greater harmony and tolerance between migrants and host societies, with the aim of eliminating manifestations of racism, racial discrimination, xenophobia and related intolerance, including acts of violence, perpetrated in many societies by individuals or groups;

b. To review and revise, where necessary, their immigration laws, policies and practices so that they are free of racial discrimination and compatible with States' obligations under international human rights instruments; 

Measures that involve the host community and migrants

173. Paragraph 30:

c. To implement specific measures involving the host community and migrants in order to encourage respect for cultural diversity, to promote the fair treatment of migrants and to develop programmes, where appropriate, that facilitate their integration into social, cultural, political and economic life;

Fair Treatment of Detained Migrants

174. Paragraph 30:

d. To ensure that migrants, regardless of their immigration status, detained by public authorities are treated with humanity and in a fair manner, and receive effective legal protection and, where appropriate, the assistance of a competent interpreter in accordance with the relevant norms of international law and human rights standards, particularly during interrogation; 

Training for Police and Immigration Officials

175. Paragraph 30:

e. To ensure that the police and immigration authorities treat migrants in a decent and non-discriminatory manner, in accordance with international standards, through, inter alia, organizing specialized training courses for administrators, police officers, immigration officials and other interested groups; 

Recognition of the Credentials of Migrants

176. Paragraph 30:

f. To consider the question of promoting the recognition of the educational, professional and technical credentials of migrants, with a view to maximizing their contribution to their new States of residence; 

Fair Wages and Equal Remuneration

177. Paragraph 30:

g. To take all possible measures to promote the full enjoyment by all migrants of all human rights, including those related to fair wages and equal remuneration for work of equal value without distinction of any kind, and to the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond their control, social security, including social insurance, access to education, health care, social services and respect for their cultural identity; 

Programs to Combat Domestic Violence

178. Paragraph 30:

h. To consider adopting and implementing immigration policies and programs that would enable immigrants, in particular women and children who are victims of spousal or domestic violence, to free themselves from abusive relationships; 

Special Focus on Gender

179.                   Paragraph 31: Urges States, in the light of the increased proportion of women migrants, to place special focus on gender issues, including gender discrimination, particularly when the multiple barriers faced by migrant women intersect; detailed research should be undertaken not only in respect of human rights violations perpetrated against women migrants, but also on the contribution they make to the economies of their countries of origin and their host countries, and the findings should be included in reports to treaty bodies;

Economic Opportunities

180.                   Paragraph 32: Urges States to recognize the same economic opportunities and responsibilities to documented long-term migrants as to other members of society;

Adequate Social Services

181.                   Paragraph 33: Recommends that host countries of migrants consider the provision of adequate social services, in particular in the areas of health, education and adequate housing, as a matter of priority, in cooperation with the United Nations agencies, the regional organizations and international financial bodies; also requests that these agencies provide an adequate response to requests for such services; 

Gender Perspective

182.                   Paragraph 50: Urges States to incorporate a gender perspective in all programs of action against racism, racial discrimination, xenophobia and related intolerance and to consider the burden of such discrimination which falls particularly on indigenous women, African women, Asian women, women of African descent, women of Asian descent, women migrants and women from other disadvantaged groups, ensuring their access to the resources of production on an equal footing with men, as a means of promoting their participation in the economic and productive development of their communities;

Effective Measures at the National, Regional and International Level

183.                   Paragraph 64: Urges States to devise, enforce and strengthen effective measures at the national, regional and international levels to prevent, combat and eliminate all forms of trafficking in women and children, in particular girls, through comprehensive anti-trafficking strategies which include legislative measures, prevention campaigns and information exchange.  It also urges States to allocate resources, as appropriate, to provide comprehensive programs designed to provide assistance to, protection for, healing, reintegration into society and rehabilitation of victims.  States shall provide or strengthen training for law enforcement, immigration and other relevant officials who deal with victims of trafficking in this regard;

Administrative and Legislative Policies

184.                   Paragraph 67: Urges States to design or reinforce, promote and implement effective legislative and administrative policies, as well as other preventive measures, against the serious situation experienced by certain groups of workers, including migrant workers, who are victims of racism, racial discrimination, xenophobia and related intolerance.  Special attention should be given to protecting people engaged in domestic work and trafficked persons from discrimination and violence, as well as to combating prejudice against them;

Laws against Smuggling of Migrants

185.                   Paragraph 69: Urges States to enact and implement, as appropriate, laws against trafficking in persons, especially women and children, and smuggling of migrants, taking into account practices that endanger human lives or lead to various kinds of servitude and exploitation, such as debt bondage, slavery, sexual exploitation or labor exploitation; also encourages States to create, if they do not already exist, mechanisms to combat such practices and to allocate adequate resources to ensure law enforcement and the protection of the rights of victims, and to reinforce bilateral, regional and international cooperation, including with non-governmental organizations that assist victims, to combat this trafficking in persons and smuggling of migrants;

Ratification of Relevant Instruments

186.                   Paragraph 78: Urges those States that have not yet done so to consider signing and ratifying or acceding to the following instruments:

b.       International Labour Organization Migration for Employment Convention (Revised), 1949 (Nº 97);

i.        International Labour Organization Migrant Workers (Supplementary Provisions) Convention, 1975 (Nº 143);

k.       International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families of 1990;

m. United Nations Convention against Transnational Organized Crime, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the Convention and the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the Convention of 2000;

Compliance with the Vienna Convention on Consular Relations

187.                   Paragraph 80: Urges States to seek full respect for, and compliance with, the Vienna Convention on Consular Relations of 1963, especially as it relates to the right of foreign nationals, regardless of their legal and immigration status, to communicate with a consular officer of their own State in the case of arrest or detention;

Prohibition of Discriminatory Treatment against Migrant Workers

188.                   Paragraph 81: Urges all States to prohibit discriminatory treatment based on race, colour, descent or national or ethnic origin against foreigners and migrant workers, inter alia, where appropriate, concerning the granting of work visas and work permits, housing, health care and access to justice; 

Preparation of Studies on Migration

189.                   Paragraph 96: Invites States to promote and conduct studies and adopt an integral, objective and long-term approach to all phases and aspects of migration which will deal effectively with both its causes and manifestations.  These studies and approaches should pay special attention to the root causes of migratory flows, such as lack of full enjoyment of human rights and fundamental freedoms, and the effects of economic globalization on migration trends;

Rights of Migrant Workers

190.                   Paragraph 105: Urges States to give special attention, when devising and implementing legislation and policies designed to enhance the protection of workers' rights, to the serious situation of lack of protection, and in some cases exploitation, as in the case of trafficked persons and smuggled migrants, which makes them more vulnerable to ill-treatment such as confinement in the case of domestic workers and also being employed in dangerous and poorly paid jobs;

Education and Human Rights

191.                   Paragraph 133: Urges States to develop and strengthen anti-racist and gender-sensitive human rights training for public officials, including personnel in the administration of justice, particularly in law enforcement, correctional and security services, as well as among health-care, schools and migration authorities;

Training and Awareness-raising in the Area of Human Rights

192.                   Paragraph 138: Urges States to strengthen the human rights training and awareness-raising activities designed for immigration officials, border police and staff of detention centres and prisons, local authorities and other civil servants in charge of enforcing laws, as well as teachers, with particular attention to the human rights of migrants, refugees and asylum-seekers, in order to prevent acts of racial discrimination and xenophobia and to avoid situations where prejudices lead to decisions based on racism, racial discrimination, xenophobia or related intolerance; 

Training for Police Officials

193.                   Paragraph 139: Urges States to provide or strengthen training for law enforcement, immigration and other relevant officials in the prevention of trafficking in persons.  The training should focus on methods used in preventing such trafficking, prosecuting the traffickers and protecting the rights of victims, including protecting the victims from the traffickers.  The training should also take into account the need to consider human rights and child- and gender-sensitive issues and it should encourage cooperation with non-governmental organizations, other relevant organizations and other elements of civil society; 

Information and Communication

194.                   Paragraph 144: Urges States and encourages the private sector to promote the development by the media, including the print and electronic media, including the Internet and advertising, taking into account their independence, through their relevant associations and organizations at the national, regional and international levels, of a voluntary ethical code of conduct and self-regulatory measures, and of policies and practices aimed at:

e.       Avoiding stereotyping in all its forms, and particularly the promotion of false images of migrants, including migrant workers, and refugees, in order to prevent the spread of xenophobic sentiments among the public and to encourage the objective and balanced portrayal of people, events and history;

Information and Communication

195.                   Paragraph 175: Encourages States, in cooperation with non-governmental organizations, to undertake campaigns aimed at clarifying opportunities, limitations and rights in the event of migration, so as to enable everyone, in particular women, to make informed decisions and to prevent them from becoming victims of trafficking; 

Bilateral and Regional Instruments

196.                   Paragraph 182: Encourages States to participate in regional dialogues on problems of migration and invites them to consider negotiating bilateral and regional agreements on migrant workers and designing and implementing programmes with States of other regions to protect the rights of migrants;


197.                   Paragraph 183: Urges States, in consultation with civil society, to support or otherwise establish, as appropriate, regional, comprehensive dialogues on the causes and consequences of migration that focus not only on law enforcement and border control, but also on the promotion and protection of the human rights of migrants and on the relationship between migration and development;


198.                   Paragraph 184: Encourages international organizations having mandates dealing specifically with migration issues to exchange information and coordinate their activities on matters involving racism, racial discrimination, xenophobia and related intolerance against migrants, including migrant workers, with the support of the Office of the United Nations High Commissioner for Human Rights;

199.                   Paragraph 186: Encourages States to conclude bilateral, sub regional, regional and international agreements to address the problem of trafficking in women and children, in particular girls, as well as the smuggling of migrants;

The Office of the High Commissioner for Human Rights

200.                   Paragraph 196: Requests the Office of the High Commissioner for Human Rights to pay special attention to violations of the human rights of victims of racism, racial discrimination, xenophobia and related intolerance, in particular migrants, including migrant workers, to promote international cooperation in combating xenophobia and, to this end, to develop programmes which can be implemented in countries on the basis of appropriate cooperation agreements;

201.          The Rapporteurship invites the states, civil society organizations, migrants’ organizations, trade unions, and other migrant workers’ organizations to incorporate the Declaration and Programme of Action in their objectives and activities.  In this regard, it is important to mention that the elimination of racial discrimination, racism and xenophobia that affects aliens, such as migrant workers and their families, is a serious problem and that tackling it requires the participation of different social actors.


          202.          As part of its work pursuant to its mandate, the Rapporteurship of Migrant Workers has established contact with various governments in order to carry out on-site observations concerning the human rights situation of migrant workers and their families in member States of the OAS.  Two members of the Rapporteurship’s team visited Costa Rica from November 19 through 21, 2001, with the objective of gathering information on the situation of migrant workers in Costa Rica as well as background material with respect to the implementation of the agreement on the assisted return of extra-regional migrants.  This agreement is an intergovernmental initiative designed to expedite the return of undocumented migrants who are not from Central America, and would be implemented by the International Organization for Migration.  

          203.          The Rapporteurship of Migrant Workers prepared a draft report concerning this visit, which was transmitted to the Government of Costa Rica on March 15, 2002, with a request that the latter present its observations and comments within 30 days.  On April 15, 2002, that Government presented its observations on the draft report.  These observations will be carefully studied and assessed by the Rapporteurship prior to the publication of the report.


204.          In concluding this report to the OAS General Assembly, the Rapporteurship of Migrant Workers and their Families expresses its preoccupation on the general situation faced by this population in the Americas. It is important to reiterate that precisely the abovementioned problems motivated the creation of this Rapporteurship in 1997.  As of this writing, these difficulties do not show signs of improvement; on the contrary, they   unfortunately seem to have worsened.  In this respect, the difficulties and challenges related to migration affairs do not correspond to a specific, recent development, but rather reflect a growing trend that affects all regions of the world.  Thus, it seems indispensable that as a phenomenon migration continues arising the interest of both OAS member states and the IACHR.  Consequently, the Rapporteurship insists on the necessity that OAS member states commit themselves to treating migrant workers in a humane and decent manner, irrespective of their migratory status and origin. 

1.          Alike in our 2000 annual report, our first recommendation refers to the need to continue the Rapporteurship’s mandate, which emanates from the OAS General Assembly.  However, we believe that this renewal ought to be accompanied by a firm commitment on the part of OAS member states to contributing to the Rapporteurship’s voluntary fund.  A financial endorsement of this nature is critical to guaranteeing that the Rapporteurship may be able to fulfill its broad mandate that, as mentioned before, includes among other things research, promotion, and training activities.

2.          The Rapporteurship, on the other hand, reiterates its interest in improving and widening its contacts and coordination activities with intergovernmental organizations working in issues related to migration, in particular, when their mandates pertain directly to the protection and promotion of migrant workers’ human rights.  In this respect, we believe it is crucial to continue developing institutional links with the UN Special Rapporteur on Migrant Workers, the International Organization of Migration (IOM) and the UN High Commissioner for Refugees (UNCHR).  At the same time, the Rapporteurship underlines the importance to continue participating in intergovernmental forums such as the Regional Conference on Migration and the South-American Conference on Migration.  We also deem necessary to deepen our contacts with members of nongovernmental organizations working in favor of this population in the Americas.  In this respect, we call upon OAS member states as well as organizations and people interested in the well-being of migrant workers to send comments and suggestions concerning this annual report.  More generally, we also encourage these actors to render recommendations that could help to improve the work undertaken by the Rapporteurship.

3.          The Rapporteurship is interested in fostering an exchange of information concerning the situation faced by migrant workers and their families in the region.  We therefore call upon OAS member states, research centers, nongovernmental organizations and persons interested in this issue to provide information on migration affairs, including, among others, problems in regards to the root sources of migration and state’s migration policies and practices.  These inputs are vital to help the Rapporteurship to carrying out its mandate.

4.          We also reiterate the call made by UN General Assembly to OAS member states to sign and ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.  As stated in our 2000 annual report, the aforementioned Convention represents the most prominent effort to sanction rights and binding obligations on states regarding the fundamental rights of this population.  This call notwithstanding, we encourage OAS member states to assess the possibility and desirability of creating a similar instrument for the Americas, either through a Declaration or a Multilateral Treaty, which would cater the specific needs to migrant workers and their families in this region.  In this respect, we invite states, intergovernmental and nongovernmental organizations, research institutes and universities, and people interested in this topic to send suggestions and ideas.  We also deem crucial reaching consensus in this area so as to assure that sending, receiving and countries of transit of migrants support this initiative.  In this respect, we underline that, in our opinion, it would be counterproductive that an instrument of this nature ended up being conceived to only reflect the interests of a particular group of states.

5.          In light of the relatively embryonic development of research concerning the economic repercussions of migration, especially in several countries in the Americas, the Rapporteurship   recommends to channel resources to support studies in this area.  At the same time, the Rapporteurship calls upon universities, think-tanks and other institutions devoted to research migration issues to undertake and promote investigations to contribute to assessing the real economic consequences migration has on the economies of nation states.  This is not only crucial in the case of recipient states, but also in countries of origin of migrants because, as was pointed out, in some sending countries remittances represent a vital source of foreign currency and a significant percentage of their GDP.  As a way to facilitate the development of these kinds of investigations, we call upon receiving and sending countries to put in place systems to collect information and statistics on different aspects revolving around to migration.

6.          On the other hand, the Rapporteurship calls upon OAS member states to attempt implementing the recommendations of the Declaration and the Programme of Action of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance.  The Declaration and the Programme of Action of the Conference contain numerous, important clauses related to discrimination, racism and xenophobia against migrant workers and their families.  While these articles are not binding on states, they meticulously characterize the problem affecting migrant workers and other migrants, propose constructive ways to protect these people, and also remind states about their international duties and obligations.

7.          Alike in our 2000 annual report, the Rapporteurship considers crucial that States multiply their efforts in combating discrimination, racism, xenophobia and other forms of intolerance against migrant workers in the Americas.  We therefore call on OAS member states to undertake concrete actions to promote tolerance among their citizens and respect for migrant workers and their families.  In order to attain this goal, we propose several measures.  First, we encourage states to review with a critical spirit national, education programs and also promote precautionary measures, such as implementing multicultural plans that foment tolerance and that teach people respect and appreciation for racial, religious, and ethnic differences  These programs, we believe, could contribute to avoid that certain groups disseminate racist and xenophobic messages.  Second, we encourage states to implement measures that guarantee that public representatives dealing with migrants such as migrant workers do not incur in discriminatory or abusive conducts that violate the fundamental rights of foreign workers.  And thirdly, we recommend stimulating the active participation of the media in public, educational campaigns aimed at promoting respect and value for ethnic, religious, and racial diversity and that also underline the contribution of migrant workers to the host society.     

8.          At the same time, the Rapporteurship underlines the need of tackling the problem posed by the guidance, smuggling and trafficking in human beings.  In light of the information presented previously in this report, our first recommendations relates to the necessity that States start to realize the complexity of this phenomenon.  In this regard, it is particularly important that states begin to distinguish human trafficking from activities like smuggling and guidance of people across borders.  The Rapporteurship is preoccupied that, more often than not, states tend to use the term trafficking in a very loose way.  As a result, they recurrently tend to regard as human trafficking activities that do not constitute that kind of unlawful action.  It goes without saying that human trafficking constitutes an infamous exploitation of people by fellow human beings.  Consequently, the Rapporteurship supports that states use all legal instruments at their disposition, both national and international, to arrest, prosecute and punish those responsible for trafficking human beings.  In this regard, the Rapporteurship deems vital that states impose more strict controls upon governmental representatives such as migration and police officers to prevent these persons from participating directly or as accomplices in human trafficking.

9.          The Rapporteurship also believes that an exclusively repressive strategy to curb guidance, smuggling and trafficking of migrants, could unintentionally aggravate the situations of migrant workers and other migrants.  It is relevant to keep in mind that a penal prosecution could contribute to increase the price of the guiding, smuggling and trafficking “services” and, consequently, make conditions more hazardous for the life and well-being of migrant workers.  Concerning this point, we express concern in regards to some attempts on the part of some states to harmonize repressive actions, which generally are presented as measures aimed at curbing these illegal activities, but that very often end up expediting massive deportation of undocumented migrants, in particular those interdicted in international waters.  In this regard, we reiterate the need to guarantee respect for fundamental human rights principles in all instances when migrant workers enter the jurisdiction of a country of which they are not nationals. 

10.          On the other hand, the Rapporteurship is very concerned about the existence of a legal vacuum concerning the protection of victims of human trafficking, according to the definition of this activity presented in this report.  People that are forced to migrate, either through coercion or deceit, and that generally end up exposing themselves to situations of abuse or semi-slavery, we believe, urgently need assistance and protection on the part of governments.  Therefore, we consider it vital that states develop national and international schemes to guarantee the well-being of this vulnerable group.  In this respect, the Rapporteurship suggests that procedures aimed at combating human trafficking be complemented with assistance and protective measures for the victims.  In situations in which victims are required or encouraged to testify in penal procedures against traffickers, authorities ought to find ways to guarantee victims’ physical safety and dignity.  In this respect, we believe, authorities should devise ways to facilitate the victims’ participation in the aforementioned penal procedures without depriving them from their freedom.  At the same time, various countries in the Americas should adjust their penal codes and create new provisions so as to face the challenge posed by organized crime engaging in trafficking.  The Rapporteurship, in particular, encourages states to seriously consider signing and ratifying the UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others. [101] Additionally, we recommend the signature and ratification of the Convention Against Transnational Organized Crime and its two protocols, one 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.[102]  

11.          The Rapporteurship also expresses its preoccupation about the detention conditions faced by migrant workers in the Americas.  Unfortunately, deficient detention conditions for these people are a general trend in the region.  The existence of a few noticeable exceptions notwithstanding, poor detention conditions in centers for administrative detention and penitentiary institutions is one of the most serious problems in terms of the administration of justice and the protection of human rights in the Americas. While taking into account budgetary restriction, the Rapporteurship insists that, as established by Article 5 of the American Convention, the right to personal integrity should be respected in every situation, and that people deprived from their freedom should be granted a human and decent treatment.  At the same time, the Rapporteurship underscores the need to distinguish between administrative and penal detention.

12.          In regards to the previous point, based upon the project of an Inter-American Declaration concerning the Rights and the Attention of People Deprived of their Freedom, submitted to consideration to the OAS General Assembly during its ordinary period of session (San Jose, Costa Rica, June 2001), the Rapporteurship recommends various points.  First, we believe that States should attempt utilizing alternatives to detention as a mechanism to guaranteeing court appearance in the case of people involved in a process of expulsion and/or to assure that decisions adopted by immigration authorities are carried out according to the law.  In cases in which the state opts for ordering the detention of an individual, authorities needs to ensure minimal conditions that provide security and treat the detainees in a decent and humane way.  Among the measures we suggest to guarantee a decent and humane treatment we include: separation of adults and minors, men and women-unless in the case of families; minimal conditions of hygiene; ensuring that detention centers count with ventilation, sufficient light and an adequate temperature; the provision to detainees of basic, healthy food, medical aid, clothing, and utensils to guarantee their personal hygiene.  In addition, in cases of long periods of detention, the authorities should take all appropriate measures to provide to detainees possibilities of educational opportunities and recreation.  On the other hand, captives should have access to telephone and be allowed to receive visitors under conditions of privacy.  Authorities should also guarantee that detainees have the chance to exercise their right to defense by seeking the assistance of a lawyer and by ensuring their right to contacting their respective consulates.  In cases of penal accusations, as stated by the Vienna Convention on Consular Relations and the Advisory Opinion (OC-16) of the Inter-American Court of Human Rights, authorities have to inform detainees of their right to contact a consular officer belonging to his/her native country.  Most of the aforementioned principles are basic elements of due process and form part of the American Declaration of Rights and Duties of Man and the American Convention on Human Rights.

13.          In addition, the Rapporteurship believes that states ought to take all the necessary mechanism to guarantee that governmental officials regularly dealing with migrant workers do not engage in unlawful or abusive behavior.  A major stumbling block in preventing human rights violations against migrant workers, in the Americas and elsewhere, is the lack of adequate control mechanisms of state authorities that interact with migrant workers.  In this respect, the Rapporteurship calls upon OAS member states to develop human rights initiatives such as training programs for public officers working in migration affairs.  Simultaneously, we deem indispensable to create supervision mechanisms so as to provide migrant workers institutional avenues to file complaints (and follow up of those complaints) against abusive authorities that violate their basic rights.

14.          Lastly, the Rapporteurship reiterates its invitation to OAS member states, intergovernmental and nongovernmental organizations, civil society representatives, researchers, and the general public to study the chapter on due process published in our 2000 annual report.  The aforementioned chapter attempts to stimulate a constructive debate concerning basic elements of due process and migratory procedures in the Americas.  With this spirit in mind, we invite all the abovementioned organizations and persons to send us suggestions and recommendations regarding our analysis.  Such inputs and insights, we believe, will help us to promote a productive debate on this relevant matter.

[ Table of Contents | Previous | Next ]

[98] Regional Meeting of Experts for Latin America and the Caribbean on Economic, Social and Legal Measures to Combat Racism with Special Reference to Vulnerable Groups. Conclusions and Recommendations, pp. 2-3

[99] The delegations of Israel and the United States withdrew from the Conference.

[100] United Nations Human Commission on Human Rights. Report of the Representative of the Secretary-General for Migrant Workers, Ms. Gabriela Rodríguez,  submitted in accordance with Commission Resolution 2001/52. 15 of February 2002, E/CN.4/20002/4.  

[101] United Nations General Assembly. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. Resolution 317 (IV) of 1949.

[102] United Nations General Assembly. Convention Against Transnational Organized Crime. Un document (A/55/383), 2 of November 2000.