Migration and Protection in the Americas

Central to the discussions was the role of the Inter-American Human Rights System, a dual structure comprising the Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACtHR). Established in 1959, the IACHR is an autonomous organ tasked with monitoring human rights conditions and addressing violations in member countries. Through its petitions system and thematic monitoring, the Commission plays a crucial role in highlighting human rights issues and ensuring that states are held accountable.

The Court complements the Commission by providing both consultative and contentious functions ("contentious" refers to the Court's role in resolving disputes or cases involving conflicting parties, specifically where there are allegations of human rights violations). While the Court's early work focused on addressing the aftermath of dictatorships and internal armed conflicts, it has since evolved to handle a wider array of human rights cases. This dynamic jurisprudence reflects the Court’s adaptability to new challenges, including those emerging from migration and human mobility.

Consultative Function

The consultative function of the IACtHR allows it to issue advisory opinions on matters related to the interpretation of the American Convention on Human Rights (ACHR) and other human rights treaties applicable in the region. This function is significant for several reasons:

1. Clarifying Legal Norms: The Court can clarify the scope and meaning of human rights provisions, providing guidance to states on how to interpret and apply these norms in their domestic laws and practices.
2. Preventive Role: By providing advisory opinions, the Court helps prevent human rights violations by advising states on the legal implications of their actions or proposed legislation before any potential violation occurs.
3. Support to the Commission: The Court’s advisory opinions also assist the IACHR by offering legal interpretations that can be referenced in the Commission’s monitoring and reporting activities.
4. Broader Reach: Not only states but also organs of the OAS and even individuals can request advisory opinions from the Court, which allows a broad range of actors to engage with and seek clarification on human rights issues.

Contentious Function

The contentious function is where the IACtHR directly adjudicates cases of alleged human rights violations brought before it. This process is more judicial in nature and involves the following key aspects:

1. Adjudicating Cases: The Court hears cases referred to it by the IACHR or by member states that have accepted its jurisdiction. It issues binding judgments that determine whether a state has violated the rights protected under the ACHR.
2. Issuing Reparations: If the Court finds that a state has committed human rights violations, it not only declares the violation but also orders reparations, which can include measures such as compensation, restitution, rehabilitation, satisfaction, and guarantees of non-repetition.
3. Developing Jurisprudence: Through its rulings, the Court contributes to the development of international human rights law by setting precedents that guide states and other international bodies on how to interpret and apply human rights standards. This evolving jurisprudence is influential not only in the Americas but also globally.
4. Enforcing Accountability: The Court’s judgments are binding on the states concerned, meaning that states are legally obligated to comply with the Court’s orders. This function strengthens accountability and ensures that states take concrete steps to remedy violations and prevent future ones.

Interaction Between the Court and the Commission

The relationship between the IACtHR and the IACHR is symbiotic:

• Referral of Cases: The Commission acts as a gatekeeper, deciding which cases are severe enough or unresolved to be referred to the Court. Typically, this happens when a state fails to comply with the Commission’s recommendations or when the legal issues involved are particularly complex.
• Collaboration in Cases: During contentious cases, the Commission often represents the victims before the Court, presenting the case and supporting the victim’s claims. The Commission also monitors compliance with the Court’s judgments.
• Mutual Reinforcement: While the Commission handles a broader range of functions, including country reports, thematic reports, and urgent measures, the Court’s rulings reinforce the Commission’s efforts by providing authoritative interpretations and ensuring state accountability through legally binding judgments.

The IACtHR complements the IACHR by offering both preventive guidance through its consultative function and enforceable justice through its contentious function. Together, they form a comprehensive system for protecting and promoting human rights in the Americas.

Jurisdiction

The IACtHR exercises its jurisdiction over human rights violations as defined by the ACHR and other relevant treaties within the Inter-American human rights system.

1. Contentious Jurisdiction

This jurisdiction allows the Court to adjudicate cases brought before it by either the IACHR or by states themselves. The key elements of its contentious jurisdiction include:

• State Acceptance of Jurisdiction: Only states that have ratified the ACHR and have expressly accepted the Court’s jurisdiction are subject to its rulings. Acceptance can be general or specific, meaning a state may accept the Court’s jurisdiction for all possible cases or only for specific types of cases.
• Adjudication of Human Rights Violations: The Court hears cases where individuals, civil society organizations, or the Commission allege that a state has violated the human rights of individuals within its jurisdiction. The Commission initially handles the complaint and, if the state does not comply with its recommendations, can refer the case to the Court.
• Issuing Binding Judgments: Once the Court rules on a case, its judgments are final and binding on the state concerned. The state is legally obligated to comply with the Court’s orders, which may include reparations, policy changes, or other actions to rectify the human rights violation.

2. Advisory Jurisdiction

The advisory jurisdiction of the IACtHR allows it to issue advisory opinions on matters related to the interpretation of the ACHR and other treaties concerning human rights in the Americas. This function provides guidance to states, the Commission, and other OAS organs on the interpretation and application of human rights law. Advisory opinions are non-binding but carry significant legal and moral weight. They help clarify legal norms and contribute to the development of human rights jurisprudence in the region.

• Who Can Request Advisory Opinions: Any OAS member state or OAS organ can request an advisory opinion from the Court. While the opinions are not legally binding, they serve as important references for states when implementing policies or reforms related to human rights.

Challenging the Jurisdiction of the Court

The Court’s jurisdiction can be challenged, but the process and success of such challenges depend on various factors:

1. State Withdrawal or Denial of Jurisdiction

• Withdrawal from the Convention: A state can withdraw from the ACHR, as seen when Venezuela withdrew from the Convention in 2013. However, even if a state withdraws from the ACHR, it remains accountable for any violations that occurred while it was a party to the Convention, and the Court retains jurisdiction over cases that were initiated prior to the withdrawal.
• Conditional Acceptance: A state may accept the Court’s jurisdiction with conditions, such as limiting it to specific time periods or subject matter areas. This could allow states to challenge cases that fall outside the conditions of their acceptance.

2. Challenges to Admissibility of Cases

• Failure to Exhaust Domestic Remedies: Before a case is referred to the Court, the petitioners must exhaust all available domestic remedies unless it can be shown that these remedies are ineffective or unavailable. A state may challenge the Court’s jurisdiction over a case on the grounds that the petitioners did not follow this process.
• Time-Limited Cases: A state can argue that the case concerns events that occurred before the state accepted the Court’s jurisdiction or after it withdrew from the ACHR. The Court can only hear cases involving violations that occurred during the time when the state was subject to its jurisdiction.

3. Legal and Procedural Challenges

• Jurisdictional Challenges by States: A state may contest the Court’s jurisdiction on legal grounds, arguing that the case does not fall within the scope of the ACHR or other relevant treaties, or that the Court lacks competence to hear the case based on technicalities (e.g., the state’s prior reservations or specific declarations limiting the Court’s jurisdiction).
• Interpretation of Jurisdiction: In some instances, states may argue that the Court is overstepping its mandate by expanding its interpretation of the ACHR in ways that go beyond the original intention of the treaty. However, the Court’s rulings on jurisdiction are final and cannot be appealed.

4. Non-Compliance with Judgments

While states may not directly challenge the jurisdiction of the Court after a ruling, non-compliance with the Court’s judgments can be an indirect way of resisting its authority. Some states may delay or refuse to implement the Court’s orders, although this does not invalidate the jurisdiction of the Court itself. Non-compliance can lead to diplomatic pressure, reputational damage, and other consequences within the international community.

The IACtHR has well-established jurisdiction over human rights cases involving states that have ratified the ACHR and accepted its jurisdiction. While this jurisdiction can be challenged through various legal and procedural avenues, such challenges do not typically remove the Court’s authority outright. The Court’s decisions are binding, and while states may attempt to withdraw or limit their engagement with the system, the Court’s role in upholding human rights in the Americas remains a crucial part of the regional human rights framework.

Countries that Have Ratified the ACHR and Accepted the Court's Jurisdiction

1. Argentina
2. Barbados
3. Bolivia
4. Brazil
5. Chile
6. Colombia
7. Costa Rica
8. Dominican Republic
9. Ecuador
10. El Salvador
11. Guatemala
12. Haiti
13. Honduras
14. Mexico
15. Nicaragua
16. Panama
17. Paraguay
18. Peru
19. Suriname
20. Trinidad and Tobago (Note: Trinidad and Tobago withdrew from the ACHR in 1998)
21. Uruguay
22. Venezuela (Note: Venezuela withdrew from the ACHR in 2013)

Key Points:

• Trinidad and Tobago ratified the ACHR and accepted the jurisdiction of the IACtHR but withdrew from the ACHR in 1998, effectively removing itself from the Court's jurisdiction.
• Venezuela also ratified the ACHR and accepted the Court's jurisdiction but withdrew from the ACHR in 2013. However, the IACtHR retains jurisdiction over violations that occurred before the withdrawal date or cases that were already in process before the withdrawal.

States That Have Not Accepted the Court’s Jurisdiction:

Some countries in the Americas have ratified the ACHR but have not accepted the jurisdiction of the IACtHR. These include:

• Dominica
• Grenada
• Jamaica
• Saint Kitts and Nevis
• Saint Lucia
• Saint Vincent and the Grenadines

These countries may participate in the Inter-American Human Rights System through the IACHR but are not subject to the binding judgments of the IACtHR.

Non-Signatories to the ACHR:

Several countries in the Americas have not ratified the ACHR and therefore do not participate in the IACtHR’s jurisdiction. These include:

• Bahamas
• Belize
• Canada
• Cuba (Cuba is a member of the OAS but has not participated in the Inter-American Human Rights System since 1962)
• Guyana
• United States

These countries may still be involved in the OAS and can engage with the Commission, but they are not bound by the ACHR or subject to the Court’s jurisdiction.

The IACtHR exercises jurisdiction over human rights cases in the 22 countries that have ratified the ACHR and have expressly accepted the Court's jurisdiction. While some countries have withdrawn or placed limitations on their acceptance, the Court continues to play an important role in the protection and promotion of human rights across the region.

Mechanisms to Protect the Rights of Migrants

The OAS workshop highlighted several mechanisms within the Inter-American system designed to protect migrants. These include:

• Hearings: These provide a platform for bringing to light specific situations at the international level, strengthening advocacy efforts, and generating networks among NGOs, state entities, and other stakeholders.
• Press Releases: These serve as a quicker alternative to traditional court rulings, applying international pressure on states to address urgent human rights concerns.
• Letters of Request for Information: These non-public requests are crucial for gathering detailed information from states on specific human rights issues, often serving as input for comprehensive reports.

These tools allow the Inter-American system to respond flexibly and swiftly to human rights violations involving migrants, ensuring that their rights are upheld even in complex and evolving situations.

Hearings

Hearings conducted by the IACHR bring attention to particular human rights issues or cases that might otherwise remain unnoticed or underreported.

1. Highlighting Specific Human Rights Issues: Hearings allow civil society organizations, victims, and state representatives to present specific human rights concerns directly to the Commission. These issues can range from systemic human rights abuses in a particular country to violations affecting specific communities or individuals. By holding these hearings, the Commission shines a spotlight on these issues, making them visible on an international stage.
2. Providing a Public Forum: Hearings are often public and serve as an open forum where different stakeholders can present their perspectives. This transparency ensures that the details of the cases and the nature of the alleged human rights violations are made known to a broader audience, including other states, international organizations, and the general public.
3. Empowering Victims and Advocates: For victims and their advocates, hearings provide a crucial opportunity to voice their experiences and grievances before an authoritative international body. This can be particularly important in cases where domestic avenues for justice have been exhausted or are unavailable. By presenting their case to the Commission, victims gain international recognition of their plight, which can help mobilize support and pressure for redress.
4. Generating International Awareness and Pressure: Hearings can generate significant international awareness and media attention, which in turn can create pressure on states to address the issues raised. When the Commission holds a hearing on a specific situation, it signals to the international community that the issue is serious and merits attention. This can lead to increased scrutiny and diplomatic pressure on the state involved to improve its human rights practices.
5. Facilitating Dialogue and Solutions: Hearings often bring together various stakeholders, including state representatives, victims, and human rights organizations, facilitating dialogue that might not occur otherwise. This interaction can lead to greater understanding of the issues at hand and can sometimes result in commitments from states to take corrective actions or to engage in further dialogue to resolve the issues.
6. Clarifying Legal Obligations: During hearings, the Commission can provide interpretations of human rights norms and clarify states' obligations under international law. This can help states better understand the legal implications of their actions or policies and encourage them to align their practices with international standards.
7. Documenting Evidence: The testimonies and evidence presented during hearings become part of the official record, which can be used in future proceedings, reports, or advocacy efforts. This documentation is vital for creating a historical record of human rights abuses and the efforts to address them.

Hearings conducted by the IACHR serve as a critical mechanism for bringing specific human rights issues to light at the international level, empowering victims, fostering dialogue, and generating pressure for positive change. They are a key tool in the Commission’s broader efforts to monitor and promote human rights throughout the Americas.

Process

Civil society organizations, victims, and state representatives can present specific human rights concerns directly to the IACHR through several established mechanisms. These mechanisms provide a structured way for individuals and groups to bring issues to the attention of the Commission, seek justice, and advocate for human rights improvements.

1. Petitions and Individual Complaints

• Filing a Petition: Individuals, groups, or civil society organizations can file a petition to the IACHR on behalf of victims of human rights violations. The petition must demonstrate that the state in question has violated rights protected under the ACHR or other relevant inter-American human rights instruments.
• Requirements: The petition should include detailed information about the facts, the alleged violations, the victims involved, and the domestic remedies that have been exhausted or why they were not available or effective.
• Process: Once submitted, the Commission reviews the petition to determine if it meets the admissibility criteria. If accepted, the case is processed, and the state is given an opportunity to respond. The Commission may then issue recommendations or refer the case to the IACtHR.

2. Requesting Precautionary Measures

• Urgent Situations: In situations where there is an immediate risk of irreparable harm to individuals, civil society organizations, victims, or their representatives can request precautionary measures from the IACHR. This mechanism is often used in cases of life-threatening danger, such as threats against human rights defenders, activists, or other vulnerable individuals.
• Content of Request: The request must provide evidence of the urgency and severity of the threat, as well as the potential harm that could occur if no action is taken.
• Commission’s Role: If the Commission deems the situation sufficiently serious, it can request that the state take specific protective actions to prevent harm, such as ensuring safety, providing medical treatment, or stopping a planned deportation.

3. Participating in Hearings

• Requesting a Hearing: Civil society organizations, victims, and state representatives can request a hearing during the IACHR’s regular sessions. These hearings can address specific cases, broader thematic issues, or country situations.
• Content of the Hearing: A hearing request must outline the issues to be discussed, the relevance of the topic, and the expected participants. The Commission selects which hearing requests to grant based on the urgency, significance, and potential impact of the issue.
• Conducting the Hearing: During the hearing, participants present their concerns, evidence, and arguments to the Commission. This can include oral testimony, documentation, and other forms of evidence. The state involved is often present to provide its perspective and respond to the allegations.

4. Submitting Reports and Information

• Thematic and Country Reports: Civil society organizations can submit reports and information to the IACHR, contributing to the Commission’s work in monitoring human rights conditions across the region. These reports can provide valuable data, analysis, and recommendations on specific issues or situations.
• Contribution to Thematic Reports: The IACHR frequently issues thematic reports on broad human rights issues (e.g., indigenous rights, freedom of expression, migrant rights). Civil society organizations can contribute information that helps shape these reports, highlighting particular challenges or successes in the region.

5. Engaging in Working Visits and In Situ Missions

• Inviting the Commission: States or civil society organizations can invite the IACHR to conduct a working visit or in situ mission to a specific country or region. These visits allow the Commission to observe human rights conditions firsthand, meet with victims, government officials, and other stakeholders, and gather information on the ground.
• Documentation and Advocacy: During these visits, civil society organizations and victims can provide documentation, testimonies, and other evidence directly to the Commission, enhancing the Commission’s understanding of the local human rights situation.

6. Collaborating in Public Consultations

• Input on Draft Standards: The IACHR sometimes holds public consultations on draft standards, guidelines, or policies related to human rights in the region. Civil society organizations and other stakeholders are encouraged to participate by providing feedback, suggestions, and critiques, which can influence the final outcomes.
• Engaging in Dialogue: Public consultations offer a forum for direct dialogue with the IACHR, allowing participants to voice their concerns and advocate for the inclusion of specific protections or considerations in the Commission’s work.

7. Using Press Releases and Public Statements

• Raising Awareness: Civil society organizations and victims can use the IACHR’s press releases and public statements to raise awareness about specific human rights issues. By working with the Commission, they can ensure that these issues receive international attention and generate pressure on states to take corrective actions.
• Building Momentum: Public statements from the IACHR can build momentum for change by highlighting urgent issues, encouraging state compliance with international standards, and supporting ongoing advocacy efforts.

These mechanisms ensure that civil society organizations, victims, and state representatives have multiple avenues to engage with the Commission, bringing specific human rights concerns to the forefront of the regional and international human rights agenda.

Particularities of Migrants’ Cases in International Contexts

The workshop underscored the unique vulnerabilities faced by migrants, who are often foreigners or non-nationals within their host countries. This status places them at a disadvantage, particularly when they are in irregular situations. Moreover, human rights violations against migrants frequently involve the international responsibility of multiple states, such as in cases of deportations, border rejections, or violations of the right to seek asylum.

Migrants often represent intersectional profiles, being part of historically discriminated groups such as indigenous peoples, Afro-descendants, women, children, and LGBTIQ individuals. The situations they face can occur en masse, suddenly, and in remote or difficult-to-access locations, further complicating their protection and access to justice.

The Importance of Transnational Justice Mechanisms

A key takeaway from the workshop was the pressing need for transnational justice mechanisms. Migrants should not be required to return to their country of origin to claim justice for human rights violations that occurred in their country of destination. This concept of "portable justice" is essential for ensuring that migrants’ rights are protected, regardless of their location.

The Sovereignty of Human Rights

The workshop reaffirmed that the sovereign power of states is increasingly constrained by the need to respect and protect human rights, including those of migrants. The Inter-American system plays a pivotal role in ensuring that states’ actions align with international human rights standards, thereby promoting a more just and equitable treatment of all individuals, regardless of their migratory status.

Magnitude of Migration and Forced Displacement

The Americas host a significant portion of the world’s migrant population, with millions of people moving across borders or within their own countries each year. This mass movement is driven by a variety of factors, ranging from economic opportunities to fleeing violence and persecution. The scale of this migration places immense pressure on receiving countries, which must balance humanitarian responsibilities with national security and economic concerns.

Protection Challenges

Migrants, refugees, and stateless persons often face severe protection challenges as they navigate complex legal and social landscapes. These challenges include limited access to basic services, exposure to exploitation and abuse, and difficulties in regularizing their status. The lack of adequate legal frameworks and enforcement mechanisms exacerbates these issues, leaving many migrants vulnerable to human rights violations.

Security Challenges

The movement of large populations across borders presents significant security challenges, including the potential for increased crime, human trafficking, and social unrest. States must develop strategies to manage these security concerns without infringing on the rights of migrants and refugees. This delicate balance requires robust legal frameworks, effective law enforcement, and international cooperation.

Internal Pressures Generated

The influx of migrants can create internal pressures within receiving countries, including social tension, competition for jobs, and strain on public services. These pressures often lead to the rise of xenophobic sentiments and discriminatory practices, which further marginalize migrants and undermine their integration into society. Addressing these issues requires a comprehensive approach that includes public education, policy reform, and community engagement.

Research has shown that not recognizing the skills of migrants increases competition for low skilled jobs. Therefore, it is incumbent on states in the region to put the necessary measures in place to utilize the skills of migrants.

Main Concepts in Migration and Forced Displacement

Understanding the nuances of migration is essential for developing effective policies and practices. The workshop introduced several key concepts:

• Human Mobility: This broad concept encompasses all forms of movement, recognizing the diverse motivations behind migration, including economic, social, and environmental factors.
• Migrant: Defined as any person who moves outside their usual place of residence, whether within a country or across an international border, temporarily or permanently.
• Internal Migration: Refers to the movement of people within a country, leading to the establishment of a new residence. This can be driven by factors such as job opportunities, natural disasters, or social upheaval.
• International Migration: Involves crossing an international border to move to a country where the individual is not a national. Migrants are protected under various international legal frameworks, although the term ‘migrant’ lacks a uniform legal definition.

Factors and Causes of Migration

Migration is driven by a complex interplay of factors:

• Political: Instability, persecution, and authoritarian regimes can force individuals to flee their countries.
• Cultural: Ethnic, religious, and linguistic ties often influence migration patterns, particularly in regions with diverse populations.
• Family-related: Family reunification is a common driver of migration, especially in regions with significant diaspora communities.
• War-related: Armed conflicts and violence are major push factors, leading to mass displacement of populations.
• Socioeconomic: Economic disparity, poverty, and the search for better opportunities are primary reasons for voluntary migration.
• Environmental: Climate change and natural disasters increasingly contribute to forced migration, particularly in vulnerable regions.

Voluntary and Forced Migration

Migration can be voluntary, such as labor migration, which continues to rise due to regional and bilateral economic agreements. However, migration is often forced by external factors, such as armed conflict, natural disasters, or persecution. These "push factors" compel individuals to leave their homes in search of safety and stability.

Irregular Migration

Irregular migration occurs when individuals migrate in contravention of the laws of the country of origin, transit, or destination. This can involve entering, residing, or working in a country without proper authorization. The causes of irregular migration include exploitation, human trafficking, smuggling of migrants, restrictive policies, and lack of opportunities. Irregular migrants are often at heightened risk of abuse and exploitation, making it crucial to address the root causes and provide pathways for regular migration.

Safe, Orderly, and Regular Migration

The Global Compact for Migration, adopted by the UN General Assembly, represents a landmark in international cooperation on migration. It emphasizes the need for migration to be safe, orderly, and regular, ensuring that the rights and dignity of migrants are respected. This agreement provides a framework for improving migration governance, addressing challenges, and leveraging the benefits of migration for sustainable development.

International Protection and Refugees

Refugees are individuals who flee their countries due to a well-founded fear of persecution. They are entitled to international protection under the 1951 Geneva Convention on the Status of Refugees and its 1967 Protocol. Key rights and protections for refugees include:

• Right to Non-refoulement: Refugees cannot be returned to a country where they face persecution.
• Right to Seek Asylum: Refugees have the right to apply for asylum in another country.
• Rights during the Process: Refugees are entitled to fair treatment and due process during their asylum application.
• Right to Integration: Refugees should have access to opportunities for social and economic integration in the host country.

The legal framework for refugee protection has evolved to address the changing dynamics of displacement, including the Global Compact on Refugees and the New York Declaration for Refugees and Migrants.

Statelessness and Its Relevance

Statelessness affects millions of people worldwide, leaving them without nationality or the protection of any state. The 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness establish specific obligations for states to prevent and reduce statelessness. This issue is particularly relevant due to its impact on individuals' access to rights and services, making it a critical human rights concern.

Migration and Displacement in the Americas

The Americas have seen significant migration flows, with 73.5 million international migrants, including 14.8 million in Latin America and the Caribbean. These movements are characterized by mixed and massive flows, involving diverse groups such as asylum seekers, refugees, trafficked persons, and irregular migrants. The Darién Gap, one of the world’s most dangerous migration routes, and the Caribbean’s shifting migration patterns due to climate change and natural disasters, illustrate the complexity of migration in the region.

Feminization of Migration and the Vulnerabilities of Migrant Women

Nearly half of the migrants in the Americas are women, who face additional vulnerabilities due to the sexual division of labor, discrimination, and violence. These factors create a double burden for migrant women, who often endure hardships both in transit and at their destinations.

Migrant and Refugee Children

Child migration in the Americas is one of the most pressing humanitarian crises. The region has witnessed a significant increase in the number of children on the move, many of whom are unaccompanied or separated from their families. These children face immense challenges, including the risk of trafficking, abuse, and exploitation, as well as barriers to accessing education, healthcare, and protection.

Human Rights-Based Approach

The workshop emphasized the need for a human rights-based approach in all migration-related actions. This approach ensures that the rights of all people, regardless of their migration status, are respected, protected, and fulfilled. Governments and authorities responsible for border control, security, and migration must adhere to human rights standards, placing people at the center of all debates, policies, and services.

In conclusion, the OAS Migration Boot Camp provided essential insights into the complexities of migration and forced displacement in the Americas. By focusing on legal frameworks, human rights protections, and the root causes of migration, the workshop equipped participants with the knowledge and tools needed to advocate for fairer, more inclusive policies that uphold the dignity and rights of migrants, refugees, and stateless persons across the region.