●               Rights to humane treatment, to personal liberty, to due process, to judicial protection, to nationality and to freedom of movement and residence


          Nelson Iván Serrano Sáenz vs. Ecuador


          128.     In 2005, the IACHR had occasion to consider the admissibility of a petition concerning the loss and recovery of citizenship.  The Rapporteurship believes this case should be considered in its chapter on jurisprudence because of its relevance to migrant workers and their families.[22]


           129.     In March 2003, the Commission received a petition alleging Ecuador’s violation of the right to humane treatment (Article 5), the right to personal liberty (Article 7), the right to a fair trial and the right to judicial protection (Articles 8 and 25), the guarantee of freedom from ex post facto  laws (Article 9), the right to privacy (Article 11), the right to nationality (Article 20), the right to freedom of movement and residence (Article 22), the right to equal protection (Article 24), in combination with violation of the obligation to respect rights (Article 1.1), all of the American Convention, to the detriment of  Nelson Iván Serrano Sáenz.


            130.     The facts in the case concerned Mr. Serrano Sáenz’ detention and transfer to the United States.  The petitioners asserted that in December 1971 the alleged victim, an Ecuadorian by birth, had become a naturalized United States citizen. In 1998, a new Constitution entered into force in Ecuador, Article 11 of which provided that anyone who had become a naturalized citizen of another country had the right to retain his Ecuadorian nationality.  In May 2000, Mr. Serrano Sáenz applied for his Ecuadorian passport, which was issued to him and which he used to travel to his country in August of that year. 


           131.     In May 2001, Mr. Serrano was accused of four murders in the United States.  As a result, in August 2002 the Ecuadorian authorities instituted deportation proceedings against him.  In rapid succession, the proceedings were instituted, he was taken into custody, and his deportation was ordered.  The decision was executed immediately. 


           132.     As soon as his next of kin learned of these events, they filed an appeal, which was denied on the grounds that the Immigration Law stipulated that orders for deportation were not subject to appeal.


           133.     The petitioners alleged that the right to humane treatment was violated because Mr. Serrano Sáenz was held incommunicado while in custody and not permitted to speak with this defense attorney.  Moreover, at the airport Mr. Serrano Sáenz was held in an animal cage for 7 hours, constituting cruel, inhumane and degrading treatment.  His right to personal liberty was also violated because no arrest warrant had been issued.  Furthermore, he was not taken before any court authority and was not informed of the charges against him.  During the 80-minute deportation proceeding, he was not permitted to question the legality of his detention.  


           134.     His right to a fair trial was also violated because the deportation proceeding did not afford him the opportunity to defend himself in the presence of an independent and impartial tribunal.  The decision to deport him was made by the Superintendent of Police, who is in the executive branch and appointed and removed discretionarily.  The right to a fair trial was also violated by the fact that the Immigration Law denies any possibility of appeal in the case of decisions ordering deportation.  The petitioners argued that the right to due process was violated because a deportation proceeding was used to effect an extradition.  The petitioners alleged that the State had used deportation to circumvent the clause of the Ecuadorian Constitution that prohibits extradition of nationals.  The petitioners’ contention was that Mr. Serrano Sáenz was deported rather than extradited because he was of Ecuadorian nationality.  Furthermore, assuming, arguendo, that the individual in question had been an alien, deportation should not have been ordered because the crimes alleged carried the possibility of the death penalty.


           135.     The petitioners also asserted that the State had violated the principle of legality, because it punished the alleged victim for an act that was not and could not have been a crime:  the unlawful presence of an Ecuadorian citizen in his own country.  With that, it had also violated the right to nationality.  They argued that although the alleged victim had at one time renounced his Ecuadorian citizenship, when the new Constitution became law he recovered his Ecuadorian citizenship automatically and by constitutional mandate.  His deportation was also a violation of his right to freedom of movement and residence in his country.  They further argued that Ecuador had breached the right to equal protection when the State used a proceeding reserved for illegal aliens against one of its own citizens, thereby violating Mr. Serrano Sáenz’ right not to be expelled from his own country, a right guaranteed to all other Ecuadorians.


           136.     The petitioners also claimed violation of Mr. Serrano Sáenz’ right to judicial protection because, being held incommunicado and given the brevity of the process, he was prevented from filing any remedy and from preventing his deportation.  The law denied him the opportunity to challenge the deportation decision.


            137.     The State made its arguments when it responded to the petition.  It began by explaining that in its view, Mr. Serrano Sáenz had lost his Ecuadorian citizenship in 1971 when he became a United States citizen.  While the 1998 Constitution provided for the possibility of dual citizenship, Mr. Serrano Sáenz first had to apply with the Ministry of Foreign Affairs to recover his Ecuadorian citizenship.  Mr. Serrano Sáenz did not begin that process.  For these reasons, Mr. Serrano Sáenz was an alien as far as Ecuador was concerned.  The deportation proceeding, therefore, was not a violation of his rights.  The State also noted that the proceeding was lawful. 


            138.     The Ecuadorian State explained that the passport issued in 2000 was a travel document, not identification, and that the existence of the passport did not mean that he had been granted Ecuadorian nationality.  Moreover, the State believed that the passport had been fraudulently obtained because Mr. Serrano Sáenz failed to mention that he had lost his Ecuadorian nationality.


            139.     The State also indicated that in its judgment, the life and liberty of Mr. Serrano Sáenz were not threatened by deportation or expulsion, since the arrest warrant issued in the United States was done lawfully.  It added that the absence of a remedy to appeal the deportation order was revoked by the Tribunal of Constitutional Guarantees in 1993.  But a year later, the Supreme Court had overturned that ruling on the grounds that the deportation process was a special criminal proceeding.


            140.     When examining the petition’s admissibility, the Commission found that it had competence ratione materiae, ratione personae, ratione temporis and ratione loci to examine the petition.


            141.     As for exhaustion of the remedies under domestic law, the Commission determined that under Article 30 of Ecuador’s Immigration Law the deportation order was not subject to any administrative or judicial recourse, which meant that there were no remedies to exhaust. The petitioners filed an appeal that was dismissed precisely because the order to deport was not subject to appeal of any kind.  Furthermore, because the deportation was executed immediately, had there been any recourse it would have been ineffective.


            142.     As for the other factors that must be considered for purposes of admissibility, the Commission found that the petition was filed within the required six-month period and that the subject of the petition was not pending before another international proceeding for settlement.  It also found that the facts alleged appeared to establish, prima facie, a violation of rights guaranteed by the American Convention, except in the case of the allegations regarding violation of the right to equal protection, the right to protection against ex post facto laws, and the right to privacy.  In view of these considerations, the Commission decided to admit the petition.


·                     Rights to life and to humane treatment


Precautionary measures on behalf of Andrea Mortlock   


            143.     On August 19, 2005, the Commission ordered precautionary measures for Andrea Mortlock, a Jamaican woman, age 41, being held in the Passaic County Jail in Patterson, New Jersey, in the United States.  Mrs. Mortlock has lived in the United States since 1970 and was diagnosed with HIV/AIDS in 1989.  She suffers from various related disorders, including neuropathy and extreme exhaustion.  Facing the imminent threat of being deported to Jamaica, her life and personal safety are at risk because many of the drugs she is receiving are not available in her country of birth.  She may also be unable to receive the medical treatment she needs and may be denied access to public and private transportation.  Mr. Mortlock could even become the victim of physical violence.  For the foregoing reasons, the Inter-American Commission asked the United States not to deport Mrs. Mortlock until the Commission examined the merits of her petition.  Otherwise, any decision the Commission made would be ineffective and irreparable harm could be done.  On August 23, 2005, the State informed the Commission that it had relayed the Commission’s communication to the Department of Homeland Security and to the jail where Mrs. Mortlock was being held.




           144.     The importance that the States of origin are attaching to migrant workers and their families is a recent development.  While States have always performed functions to protect their nationals abroad, the concern for migrant workers and their families has increased in recent years due in part to the fact that the States of origin of the migrant workers are becoming increasingly cognizant of how important migrant workers’ remittances (money sent to the country of origin by nationals living abroad) are to their economies.


            145.     Today, the remittances that nationals living abroad send to their States of origin are a main source of foreign revenue for many countries.  In some countries, the income from remittances is higher or only slightly less than the revenues from their major export.[23] The Americas is one of the regions of the world that realizes the greatest benefit from remittances.  Six of the 20 countries in the world that receive the greatest amount in the form of remittances are in this region:  Mexico, the Dominican Republic, El Salvador, Brazil, Ecuador and Peru.[24]  Estimates are that in 2004, remittances to Latin America and the Caribbean totaled 45.8 billion dollars.[25]


            146.     Given the sums involved, for many States these remittances are becoming an invaluable tool of macroeconomic policy.  Frequently, the remittances are used to pay off balance of payments deficits.  The remittances are also used by the individuals who receive them to purchase consumer goods, food, housing, to pay for health services, to develop small income-earning projects and infrastructure projects.  The arrival of this money has an enormous impact, especially on economically depressed communities in both urban and rural areas, where families may depend on these remittances to survive.[26]


            147.     Correspondingly, and because of the macroeconomic importance of the remittances, the perception that States have of their citizens who live and work abroad has changed.  The governments and the public are now starting to measure the contributions that migrant workers send to their countries of origin.  More and more, migrant workers are beginning to be viewed not just as an economic force, but as a social and political force as well.  Remittances have also strengthened the role that migrants have in their home communities, not merely as suppliers of income but also as social and political agents.


            148.     As migrants maintain and even strengthen their links with the State of which they are nationals, they are demanding that their States of origin protect and ensure their rights.  At the same time, as previously indicated, the States of origin are gaining a greater and greater appreciation of the contributions that migrant workers and their families make, and are engaging in efforts to respond to the needs of that population group.  Recognizing how important migrant workers and their families have become, many States have made major efforts to defend the rights of their citizens abroad.  In the opinion of the Rapporteurship, these efforts deserve to be applauded and emulated.  On the other hand, however, despite the growing importance of migrant workers and their families, some States have been slow or inefficient in responding to migrant workers’ need to have their human rights protected and ensured.


            149.     Although not physically within the territory of the State of which they are nationals, migrant workers and their families remain bonded with their countries of origin.  The legal bond of citizenship preserves the dependency relationship between the migrant worker and his family on the one side, and the State of which they are nationals on the other.  This bond manifests itself in a variety of ways.  One has to do with protection of their right to recognition of their juridical personality with issuance of papers.  Then, too, migrant workers and their families frequently rely on their diplomatic mission or consulate to see to it that their human rights are protected and guaranteed.  These are instances in which the sending State’s duty vis-à-vis its citizens is preserved and becomes all the more important because of the vulnerability of migrant workers and their families, especially in the case of undocumented persons.  Frequently, the protection of a migrant worker’s rights will depend upon whether the diplomatic mission or consulate has acted quickly and effective with the authorities of the State in which the migrant worker is located.  In some instances, the sending State must make a concerted effort to cultivate policies and measures designed to protect the human rights of migrant workers by signing international agreements or setting in motion special programs geared to addressing the needs of their citizens abroad.


            150.     The Rapporteurship on Migrant Workers and Their Families thought this might be an opportune moment to reflect upon the important but frequently neglected issue of the sending States’ duty to protect and ensure the rights of migrant workers and their families.  The purpose of this chapter is to describe the most common situations in which migrant workers and their families have need of a pro-active sending State that will defend their rights.  The Rapporteurship also decided to use this opportunity to spotlight some best practices in this area that other States might consider and emulate.


             Right to life, to humane treatment and to personal liberty


            151.     In many cases, the journey that migrant workers and their families must make to get to their destinations is long and perilous.  The number of accidents and deaths of migrant workers in border areas is particularly high.[27]  Both the natural barriers and the border controls force migrants to use dangerous modes of transportation, to travel through unpoliced areas where they can easily fall prey to common criminals, and to resort to networks engaged in smuggling migrants and human trafficking.[28] Furthermore, migrant workers and their families, particularly those who are irregular migrants, are frequently arrested and held by immigration authorities and face deportation or expulsion proceedings.  This is a particularly trying situation for families that are separated, minors, and persons who are members of indigenous communities.[29]


            152.     For all these reasons, migrant workers and their families often lose touch with their relatives for long periods of time and sometimes even disappear.  At other times, the transit or receiving countries have difficulty identifying migrants who die or are seriously injured in accidents or were the victims of crime.  Then, too, States sometimes have difficulty determining the nationality of migrants taken into custody because of their irregular immigration status, making swift deportation or expulsion all the more difficult.


            153.     Because of these risks, some foreign ministries have developed special consular protection programs designed to protect the rights to life, liberty and personal security (Article I of the American Declaration of the Rights and Duties of Man –hereinafter the American Declaration- and Articles 4, 5 and 7 of the American Convention on Human Rights –hereinafter the American Convention) of their nationals abroad.  Prominent among these programs are those devised by the Secretariat for Foreign Affairs of the United Mexican States, which is running consular assistance and protection services programs.  The “Program for Protection of Mexican Citizens Abroad” is, as its name implies, targeted at providing protective services to Mexico’s citizens abroad who are in need of such services.  Salient among the services that the Secretariat for Foreign Affairs provides are the following:  services to repatriated nationals and visits to immigration detention centers; repatriation of the sick and minors; identification of mortal remains and their conveyance to Mexican territory; visits to nationals detained for violation of criminal laws; economic assistance to indigent nationals; legal advisory services and legal representation in labor-, family-, criminal and civil matters; location of missing persons; and assistance in recovering the belongings of nationals who have died or were detained, deported or expelled.[30]


            154.     Then, too, the governments of the United States and of Mexico are working together in the border region to improve security and safety along the border and to reduce fatalities there.  Prominent in this initiative is the creation of the search and rescue teams:  the Beta Groups in Mexico and the BORSTAR groups in the United States.    


             Right to nationality


            155.     In exercise of their sovereignty, States are free to establish the criteria for recognition of citizenship.  Recognition of citizenship is one of the first ways to protect and ensure the right to nationality (Article XIX of the American Declaration and Article 20 of the American Convention).  The principles generally applied are jus sanguini and jus solis.  Jus sanguini recognizes the citizenship of citizens’ offspring, regardless of where they are born.  Jus solis, for its part, recognizes citizenship in the case of persons born within the territory of that State.  The system established in each State’s constitution and laws may be a combination of the two principles or one to the exclusion of the other.


            156.     For persons outside the territory of which they are nationals, their right to nationality is protected and ensured through the State’s issuance of identification and travel documents and the citizenship status it grants to its citizens’ offspring and spouses, when the constitution or law so permits. 


            157.     The right to nationality is related to the right to juridical personality and is tangibly protected through issuance of identification papers and travel documents, the very documents that are instrumental in protecting one’s right to juridical personality.  States can better protect this right by trimming the excessive bureaucratic procedures or requirements that have to be fulfilled in order to have nationality recognized.  Measures are also needed to protect this right in the case of undocumented migrants, especially those set to be deported or expelled from a country.  It frequently happens that undocumented migrants spend long periods deprived of the right to personal liberty, waiting for the State of which they are nationals to acknowledge their citizenship and issue them travel documents.[31]


             Right to recognition of juridical personality


            158.     Protecting the right to recognition of juridical personality (Article XVII of the American Declaration and Article 3 of the American Convention) is more complicated in the case of migrant workers and their families.  In such cases, both the receiving State and the sending State have a responsibility to protect and ensure this right. In practical terms, in order for the competent authorities –be they administrative or judicial- to recognize juridical personality, a framework of laws must be in place and enforced that ensures the exercise of this right, and a document must be presented certifying identity.  When the individual is in the State of which he or she is a national, he relies upon the competent authorities to issue the necessary identification papers and in so doing to protect his right to juridical personality.  The situation is more complicated for those who do not live in the State of which they are nationals, particularly for those who are in that State irregularly or without authorization.


            159.     Protecting and ensuring migrants’ right to recognition of juridical personality, therefore, relies both on the sending State and the receiving State.  Content wise, the Rapporteurship will focus on the role of the sending State.


            160.     Migrants require identification and travel documents, copies of any criminal record they might have, birth certificates, marriage certificates, divorce papers and death certificates, to enable them to prove their identity and civil status to the competent authorities of the receiving State, so that their right to recognition of juridical personality may be protected.  It is, therefore, essential that sending States take the necessary steps to issue these documents to their citizens living abroad.  This is one of the most important functions that consulates serve.


            161.     Some States in this hemisphere go to extraordinary lengths to issue these documents quickly and efficiently.  But the positive attitude of some States of origin notwithstanding, the cost of these procedures is frequently prohibitive for migrants of lesser means, who cannot afford the identification papers they need.  Thus, measures have to be taken to enable migrants of little means to obtain identification papers, as these documents are essential to enabling irregular migrants to regularize their immigration status.  Migrant workers and their families also need these documents to change their civil status, have access to basic social services like education, health care and social security, and perform any number of other procedures, in exercise of their right to recognition of juridical personality.


            162.     The Rapporteurship would like to spotlight the Colombian authorities’ efforts at expediting and facilitating issuance of the criminal records document that the Administrative Department of Security supplies to Colombian citizens living in Spain, who want to regularize their immigration status there. Special note should also be made of the Matrícula Consular, an identification card that Mexican authorities are issuing to help prevent violation of the right to recognition of juridical personality in the case of migrants whose immigration status is irregular and who would not otherwise have any identification document. Thanks to the lobbying efforts of the consulates and migrant organizations themselves, the identification card that Mexico issues to its nationals living abroad is accepted as valid identification by some municipal authorities and various private services in a number of states of the Union.  In practice, the migrants can use the document to get a driver license, open a bank account and transact other business where they live.  These sending States have succeeded in partially protecting the right to juridical personality of their undocumented migrants.[32]  Because of the success of the matrícula consular initiative, other States are following Mexico’s lead and are now issuing this card.  These include the Dominican Republic, Guatemala, Honduras, El Salvador, Colombia, and Argentina.


             Right to due process and to judicial guarantees


            163.     Consular assistance in the form of legal advice and representation is one of the customary ways that States have helped their citizens abroad.  Article 36 of the 1963 Vienna Convention on Consular Relations provides that persons arrested, in custody, prison or detention abroad are entitled to consular protection.  The Inter-American Court of Human Rights had occasion to elaborate upon the content and scope of this right in its Advisory Opinion OC-16, where it established the link that exists between this right and the right to due process and to judicial guarantees (Article XXVI of the American Declaration and Article 8 of the American Convention).[33]


            164.     Originally, consular assistance was thought of as a means of enabling a national deprived of his or her liberty to communicate with a consulate, so that the latter might assist in that person’s defense and serve as liaison with family members.  In practice, however, consular assistance has evolved and adapted to meet the needs of nationals deprived of their liberty and migrants who, although not in custody or under arrest or detention, find themselves in other predicaments.


            165.     While it varies according to the number of nationals living abroad and the resources available to the sending State, consular protection may even involve legal representation services for individuals facing trial for crimes.  In other cases, priority is given to those facing trial for crimes that carry particularly severe penalties –the death penalty or life in prison.  Nevertheless, because of the volume of cases and the consequences that criminal convictions sometimes have for immigration, some consulates provide training to attorneys and legal assistance to persons accused of lesser crimes.


            166.     The Mexican Foreign Ministry has been active in providing legal counsel to migrants facing criminal proceedings.  In this area in particular, the Mexican government has deployed significant efforts to defend its citizens in the highest domestic courts of other States, such as the U.S. Supreme Court.  Mexico has even brought cases to international bodies like the International Court of Justice[34] and the Inter-American Commission on Human Rights, to defend its citizens abroad.


167.          The protective services that the consulates provide are in many cases the only form of assistance that migrants deprived of their freedom have.  The visits that the consular officials make to detention facilities are essential to ensuring the right to due process and to judicial guarantees of persons arrested, in custody, in prison or in detention outside their country of origin.  Consulates can collaborate in enabling communication with the defense attorney or the family, and in obtaining evidence.


168.          A recent and novel initiative on the part of the Mexican Government has been to expand its legal assistance services into other areas that are important to migrant workers and their families, such as labor disputes, domestic disputes, and issues of extra-contractual civil liability.  The Mexican Government decided to expand its legal services into other fields because it recognized that legal representation of migrant workers and their families is vital to ensuring protection of their job rights, their family rights and their right to health and social security (Articles XIV, VI, XI and XVI of the American Declaration and Article 17 of the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights, “Protocol of San Salvador”).


               Political rights


            169.     The right to participate in politics is pivotal to all other political rights.  Participation in politics may take various forms:  voting, standing for elective office, proposing legislative and government initiatives, to name just a few.


            170.     As stated at the beginning of this chapter, the link between migrants and their State of origin is preserved even when they are living in another State.  It therefore makes sense to protect and ensure the political rights of migrants, and is an obligation spelled out in international instruments that the States have voluntarily ratified.  States must make adjustments to ensure that their citizens living abroad are able to exercise and enjoy their political rights.  We are referring here specifically to the right to vote and to participate in politics by running as a candidate for elective office (Article XX of the American Declaration and Article 23 of the American Convention).     


            171.     The Americas boasts innovative examples of ways in which migrants’ political rights have been protected.  In some States, like Ecuador, Colombia, the Dominican Republic, Peru, the United States, Venezuela, Honduras and Brazil, the right to vote is guaranteed.  While in some States this right has been guaranteed for decades, in others it is the result of political pressure that resulted in amendments to constitutions and laws.  All the same, the right to vote can be virtually illusory when the requirements that the majority of migrant workers and others living abroad have to meet are particularly onerous. Hence, the law and practice governing the exercise of this right must take into account how difficult it is for citizens abroad to register to vote.


            172.     As stated in Article XXXII of the American Declaration, voting is both a right and a duty, which is why States where voting is mandatory do not exempt their citizens abroad from complying with this duty, and may even levy fines on their citizens abroad who fail to vote.


            173.     Some of the novel approaches taken are noteworthy.  Colombia, for example, allows its citizens abroad to elect a representative to Congress.  For its part, Peru has offered an amnesty to Peruvian citizens abroad who have not fulfilled their duty to vote in presidential elections.


            174.     Peru also has an initiative aimed at better enabling its citizens abroad to participate in Peruvian political life.  The Advisory Councils of Peruvians Abroad are collegiate bodies whose function is to articulate the migrant communities’ interests to the consulates.  The immigrants living in the jurisdiction of a particular consulate elect the members of the councils at an assembly.  These councils confer and cooperate with the consulates, thus enabling them to better serve the needs of Peruvians living within their jurisdiction. 


             Economic, Social and Cultural Rights


            175.     As vulnerable as they are, migrant workers and their families are exposed to countless violations of their economic, social and cultural rights.[35]  The paradox here is that frequently the decision to migrate is driven by violations of economic, social and cultural rights in the sending State.  Violation of these very rights in the receiving State compounds the suffering that migrant workers and their families endure.[36]


            176.     While migrant workers and their families are under the jurisdiction of the receiving State, there are a number of measures that sending States can take to protect their citizens’ rights. These measures are intended to help migrant workers and their families become mainstreamed and to eliminate the problems that result in violations of labor rights, the right to health, the right to social security, and the right to education for their children (Articles XIV, XI, XVI and XII of the American Declaration and Articles 6, 7, 8, 10, 9 and 13 of the Additional Protocol to the American Convention on Human Rights for Economic, Social and Cultural Rights, the “Protocol of San Salvador”).  In this case, the sending State is not responsible for the human rights violations, but it can do something to protect the human rights of its citizens abroad.


            177.     Migrant workers need information about their labor rights and about how to protect and ensure them. States can take pro-active measures to protect the rights of their citizens abroad by waging information campaigns and by promoting and signing agreements with the receiving State’s Labor Offices.  The Guatemalan Government, for example, conducts campaigns to inform temporary farm workers of their labor rights in Mexico.[37]


            178.     One area in which migrant workers are most unprotected is social security.  In most cases they may have made social security contributions in both the sending State and the receiving State, but in the end have not contributed enough in either State to qualify for a social security retirement benefit. The Bracero Program between Mexico and the United States in the period from 1942 to 1964 is an example of this risk, and resulted in violation of the migrant workers’ right to social security on the part of both States.[38] In recent years, States have made significant efforts to sign agreements on this matter.  


            179.     In today’s world, growing numbers of people with professional educations are opting to migrate for work reasons.  In many cases, after pursuing university studies abroad people frequently opt to stay where they are and work there, thereby becoming migrant workers.  In other cases, the job market, economic crises, armed strife or very tense political situations at home, are driving these professionals’ decision to look for work in another State.  Once they emigrate, such people often encounter problems and obstacles that prevent them from practicing their profession.  As a rule, these obstacles are due to the fact that the receiving State decides to bar aliens or people trained abroad from the practice of certain professions.  This is generally a way to control the labor market and the quality of the care or services that people in these professions provide.


            180.     Faced with this phenomenon, some sending and receiving States have opted to sign agreements for approval of credentials.  In other cases, the diplomatic missions of the sending States make overtures to the authorities of the receiving States to convince them of the quality of the education the sending States’ citizens receive and to allow them to practice their profession.  Efforts are also being made to standardize academic requirements and to make it easier for the children of migrant workers to fit in academically.


            181.     We are reminded here of the Mexican Foreign Ministry’s decision to expand its consular assistance program so as to provide legal representation to its nationals involved in extra-contractual civil liability, labor- and family-law proceedings.  In these cases, assistance is provided to people who do not have the means to pay the costs of legal representation and in those in which a favorable outcome is very possible.  Finally, it is important to note that Advisory Opinion OC-18 was brought by the Mexican State, to draw attention to the right of undocumented migrant workers not to suffer discrimination.[39]


             Protection of the family


            182.     In general terms, migrant workers with small children tend to leave them in the care of family members in their country of origin.  When their economic situation permits, these migrant workers try to bring their children to live with them in the receiving State.[40]  This poses multiple difficulties.  In many cases, their unauthorized migrant status does not permit the parents to go pick up their children; instead, they use migrant smuggling networks to bring their children into the receiving country.[41] In other cases, even though their immigrant status may be authorized, the requirements the law establishes are difficult to satisfy and prevent workers from bringing their children to live with them.


            183.     Sending States must therefore take measures to prevent the smuggling of migrants, in particular the smuggling of unaccompanied minors who, if smuggled in, are exposed to many dangers.  It is also important that States undertake diplomatic measures to press for immigration laws that encourage family reunification.




            184.     The role that sending States play in protecting and ensuring the human rights of migrant workers and their families is of the utmost relevance.  Sending States should, through concrete measures and diplomatic overtures, take measures that directly serve to better protect and ensure the rights of their nationals living abroad.  As described in this chapter, even though they are not within the territory of the State of which they are nationals, migrant workers and their families maintain their ties with the sending State and often rely upon it to be able to exercise and enjoy their human rights.


            185.     Sending States must therefore take a series of measures, as described above.  On the whole, many such measures fall within the realm of international relations and are therefore handled by diplomatic missions, consulates, and officials of the foreign ministries. In addition to emulating the best practices of other sending States, other types of measures are also possible.  The skills and abilities of foreign ministry personnel need to be enhanced, and the defense of the rights of citizens abroad must be given the importance and priority it deserves on a State’s domestic and international agenda.


            186.     In general terms, moreover, the efforts of some States to expand the geographic reach of their consulates is one best practice that deserves to be emulated.  Some consulates, like Mexico’s, use mobile consulates to bring their services to remote and relatively inaccessible places where communities of Mexican nationals live.


            187.     The services a State offers to meet its nationals’ needs must include their need for protection.  And so the decision to create institutions or mechanisms that serve as liaison between the migrant communities abroad and the State’s agencies is a good strategy.  Some States are working to create the institutional scaffolding that will support those functions.  Noteworthy examples are the Instituto de los Mexicanos en el Exterior [Institute of Mexicans Abroad], the Vice Ministerio de Relaciones Exteriores para los Salvadoreños en el Exterior [Office of the Deputy Minister of Foreign Affairs for Salvadorans Abroad], and others


            188.     The Rapporteurship would like to avail itself of this opportunity to call upon the States to undertake major efforts to protect the rights of its nationals abroad.  With this chapter, the Rapporteurship’s goal was to make its contribution to the discussion regarding the role that the sending States can and do play in protecting and ensuring the human rights of migrant workers and their families. 


[22] Inter-American Commission on Human Rights, Admissibility Report N° 52/05, Petition 191/03, Nelson Ivan Serrano Saenz, October 24, 2005.

[23] Estimates are that in 2004, remittances to Haiti, Nicaragua, El Salvador, Jamaica, the Dominican Republic and Guyana represented more than 20% of those countries’ gross domestic product.

[24] Stalker, Peter. 2001. The No-Nonsense Guide to International Migration. Oxford: New Internationalist Publications, pp. 110.

[25] The following were among the countries that most benefited from the influx of remittances:  Mexico, with $16.613 billion; Brazil, with $5.624 billion; Colombia at $3.857 billion; Guatemala, $2.681 billion; El Salvador, $2.548 billion; Dominican Republic, $ 2.438 billion; Ecuador, $1.740 billion; Jamaica, $1.497 billion; Peru, $ 1.360 billion; Honduras, $ 1.134 billion, and Haiti, $1.026 billion. Source: Inter-American Development Bank. Migrant Remittances as a Development Tool. http://www.iadb.org/mif/remittances/index.cfm

[26] Durand, Jorge, Parrado, Emilio A, and Douglas S. Massey. 1996. “Migradollars and Development: A Reconsideration of the Mexican Case.” International Migration Review 30 (2), pp., 423-6. Weiner, Myron. 1995. The Global Migration Crisis: Challenges to States and Human Rights. New York: Harper Collins College Publishers, pp. 140-144.

[27] During fiscal year 2005 (October 2004-September 2005), the U.S. Customs and Border Protection Division of the Department of Homeland Security reported 464 deaths along the Mexican-United States border, which is a 43% increase over the previous year. Source:  news.bbc.co.uk, October 4, 2005, http://news.bbc.co.uk/1/hi/world/americas/4307380.stm.

[28] See Chapter V of the Third Progress Report of the IACHR’s Special Rapporteurship on Migrant Workers and Their Families, http://www.cidh.org/annualrep/2001eng/chap.6.htm.

[29] See chapters IV and VI of the Second Progress Report of the IACHR’s Special Rapporteurship on Migrant Workers and Their Families, http://www.cidh.oas.org/annualrep/2000eng/chap.6a.htm.

[30] See Chapter V of the Fifth Progress Report of the IACHR’s Special Rapporteurship on Migrant Workers and Their Families, http://www.cidh.oas.org/annualrep/2003eng/chap.5.htm.

[31] On this point, see chapter V and VI of the Second Progress Report of the IACHR’s Special Rapporteurship on Migrant Workers and Their Families, http://www.cidh.org/annualrep/2000eng/chap.6.htm.  

[32] O’Neil, Kevin. 2003. Consular Id’s: Mexico and Beyond. Migration Policy Institute http://www.migrationinformation.org/Feature/display.cfm?ID=115.

[33] Inter-American Court of Human Rights.  Advisory Opinion OC-16 of October 1, 1999.  Series A No. 16.

[34] International Court of Justice, Avena and other Mexican nationals (Mexico v. United Status), Judgment of March 31, 2004, No. 128.

[35] Gosh, Bimal. 2003. The Human Rights of Migrants: Strategies for Moving Forward. Development 46 (3): 21-29; United Nations, Human Rights of Migrant Workers, Report E/CN.4/2000/82, paragraph 41; Chapter IV of the Second Progress Report of the IACHR’s Special Rapporteurship on Migrant Workers and Their Families, http://www.cidh.oas.org/annualrep/2000eng/chap.6a.htm.

[36] Taran, Patrick. 2000. Human Rights of Migrants: Challenges of a New Decade.  International Migration 38 (6)

[37] See chapter VI of the Fourth Progress Report of the IACHR’s Special Rapporteurship for Migrant Workers and Their Families, http://www.cidh.oas.org/annualrep/2002eng/chap.6.htm.

[38] Massey, Douglas, Jorge Duolan Malone. 2002. Beyond Smoke and Mirrors. New York Russell Sage Foundation, pp. 35-9.

[39] Inter-American Court of Human Rights, Advisory Opinion OC-18, September 17, 2003.  Series A No. 18.

[40] Massey, Douglas, Jorge Durand, and Nolan Malone. 2002. Beyond Smoke and Mirrors. New York Russell Sage Foundation, pp, 7-23; Castles, Stephen and Mark J. Miller 1993. The Age of Migration. New York: The Guilford Press,
pp 1-16.

[41] Chapter V of the Third Progress Report of the IACHR’s Special Rapporteurship on Migrant Workers and Their Families. http://www.cidh.org/annualrep/2001eng/chap.6.htm.