P.O. Box 5675, Berkeley, CA 94705 USA
Border Deaths and Arbitrary Detention of Migrant Workers
Michael Branca, Frank E. Newman Intern
Representing Human Rights Advocates through
University of San Francisco School of Law’s
International Human Rights Clinic
Professor Connie de la Vega
“My Italian grandfather entered the U.S. illegally in 1900. Even though he went to college, worked as a pharmacist for 55 years, paid his taxes and earned social security, he told me he was never legalized.”1
In 1900 there were so many immigrants coming into the U.S. the government was not always able to monitor whether those coming were properly documented. My grandfather was brought into the U.S. without documentation by his aunt who pretended that he was their son. He never encountered any obstacles to obtaining employment, entering college, paying taxes, earning his social security, nor in obtaining a U.S. passport.
Times are different today. In the last 20 years there has been a major shift in worldwide immigration policy. At the time of my grandfather’s migration from Italy in 1900 and throughout most of the 20th century, the U.S. border was open to legal migrants filling the demand for labor. Immigration policy was focused on the free flow of legal migrants and a weeding out of the unskilled. Today the focus in developed and developing countries is on securing borders from terrorists. This shift has resulted in the criminalization of the unskilled migrant,2 while providing an environment that increases the risk of exposing migrants to human rights abuses.
There are 175 million migrants in the world today.3 The diversity of migrant individuals includes professional, skilled, and non-skilled labor; citizens of developing and developed nations; children attempting to migrate alone; women and men of all ages, races, creeds, sexual orientations, nationalities, and ethnicities; and documented and undocumented migrants. The reasons for migration include many push and pull factors that are as diverse as the migrants themselves. Some of the important push factors are war, discrimination, and poor economic conditions; some of the pull factors include economic opportunity, family, even wanderlust. In spite of the diversity of migrants and reasons for migration, border security and deportation of a criminal element are the primary drivers of modern immigration policy.
“In the decade preceding September 11, 2001, the inability of the immigration system [in the U.S., for example] to stop illegal border crossing was virtually conceded.”4 Beginning with the challenge of assimilating refugees from Southeast Asia in the 1970’s, continuing with the push of political crises and the pull of job opportunity for destitute Mexicans and Central Americans, and culminating with increasing terrorist attacks against the U.S. (within and external to its borders), “the immigration system has progressively abandoned the objective of assimilation, assumed the indigestibility of recent immigrants and refugees, and focused increasingly upon the task of managing inassimilable and therefore presumptively unknowable, unruly and dangerous immigrants.”5 After shifting from the “White [ ] Policy”6 of the early period of Australian immigration to a multiculturalists policy of the 60’s and 70’s, Australia has shifted to a “quest for control,”7 sparked by an influx of Afghan and Iraqi boat refugees.8 In spite of the fact that the terrorists that attacked the World Trade Center on September 11, 2005 were not undocumented migrants,9 the securing of borders from terrorists has become the disproportionate driver behind immigration policies.
The result of this trend is the increasing risk that migrants’ human rights are being violated. In particular, key rights of 35 million undocumented workers10 are being violated. The right to life is being violated as evidenced by the increasing number of undocumented migrant deaths at border crossings. The right to liberty is being violated as evidenced by the increasing number of undocumented migrants arbitrarily detained at borders.
The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, and the Convention and Protocol Relating to the Status of Refugees all recognize a right to life and freedom from arbitrary detention.
This paper highlights the ways in which the trend in immigration policy has not stemmed the flow of illegal migrants but has actually caused an increase in the death and arbitrary detention of migrants and the alternatives that states should implement in order to comply with international norms regarding the treatment of migrants.
2. Border Deaths
“Matías Juan García Zavelta died of dehydration in the Arizona desert. He was one of more than 300 migrants who died trying to enter the United States in 2003.”11
The U.S. and Spain are examples where the trend in immigration policy to secure borders and criminalize migrants has contributed to a significant increase in migrant border deaths. Both countries are at the borderline between strong push and pull factors. On the U.S. side of the U.S.-Mexican border are the pull of better economic opportunities and families that have previously and successfully immigrated. On the Mexican side of the same border are the push of high unemployment and historically politically volatile governments south of Mexico.
On the Spain side of the Spanish-Moroccan border are the pull of better economic opportunities and families that have previously and successfully immigrated to Spain and throughout the EU. On the Moroccan side of the Spain-Moroccan border are the push of high unemployment and the often politically unstable and war torn countries of Africa.
The U.S. has been increasing its border security budget since 1996 with the intent of controlling the flow of drugs, of deterring illegal immigration and protecting the country from terrorists.12 Between 1996 and 2004, the U.S. added 5,000 border guards at the Mexican border.13 During the same period, the number of undocumented migrants in the U.S. increased by 280% from 5 million to an estimated 12 million.14 Spain significantly emphasized border control in its immigration policy when the conservative party came into power in 1996.15 Nonetheless, the number of illegal migrants in Spain increased by 368% between 1997 and 2003.16
The ways in which the U.S. and Spain control their borders today has increased the danger to migrants crossing illegally. The U.S. has heightened its security at the former and typically lower risk urban crossings, which has only increased the crossings at higher risk desert and river crossings at rural points along the U.S.-Mexican border.17 As a result, an estimated 3,200 undocumented migrants have died attempting to cross the U.S.-Mexican border since 1994.18
Because of Spain’s border with Africa, its membership in the EU, and the “common expulsion policy” expressed at The Tampere European Council of October 1999,19 Spain invests heavily in controlling the flow of illegal migrants through the Strait of Gibraltar.20 Since 1997, 3,600 migrants and asylum seekers died while attempting to reach Spain from Africa.21 “New research by a Dutch based refugee support group has said that over 4,500 refugees and migrants died [in 2003] trying to enter Europe and that the most deadly way to enter was across the Mediterranean. Most of the 4,500 deaths occurred between Africa and Spain.”22 These deaths are occurring because immigrants are taking riskier avenues to reach Spain, for example, by using dangerous inflatable rafts.23
3. Arbitrary Detention
“Help me please. I want a home. I want freedom . . . . Two years I stay here and everybody is crazy . . . . I’m very sad. I can’t do anything. In the compound there is nothing to do . . . . We see all sad and crying. I see three lady in my compound sewing her mouths.”24
This is the plea of a refugee in an Australian refugee detention camp where some refugees had sown their lips in a hunger strike against their arbitrary detention.25 If a migrant manages to survive the life threatening dangers of an illegal crossing but is caught by border police, he/she often faces horrific conditions while being arbitrarily detained until his/her status is determined. As many migrants are often seeking asylum from dangerous conditions in their home country, they are protected from arbitrary detention under the Convention and Protocol Relating to the Status of Refugees. On the other hand, “economic refugees” cannot be granted asylum under the Convention. As many migrants are fleeing unbearable economic conditions in their home countries, they are often determined deportable under the Convention. However, under Article 31 of the Convention, a State party may not impose penalties (i.e. arbitrary detention) on account of a refugee’s illegal entry or presence.
Despite of these legal standards, migrants are arbitrarily detained throughout the world. The border policies of some countries in particular are unnecessarily detaining migrants and asylum seekers. For example, the U.S. has tripled the number of immigrants in detention between 1995 and 2005 from 8,500 to 25,000.26 In Australia, 36% of detainees are detained for more than six months (18% for 6 to 12 months; 18% for a year or more).27 In some cases, “detainees wait up to five years for their immigration claims to be processed in detention centers managed by [a private contractor] which has been widely criticized for its everyday treatment of detainees.28
The U.S. and Australia have justified detentions beyond international norms by putting forth arguments that the detainees can be legally held for months and even indefinitely. There is overwhelming evidence to refute this position. Both the Inter-American Commission on Human Rights29 and the European Court of Human Rights30 have indicated that detention of twelve days or more without an opportunity of judicial review for a detainee is a violation of international norms.
There are two examples which illustrate how the U.S. has violated the Convention Relating to the Status of Refugees in the past twenty years. First, when it intercepted Haitians in international waters, the U.S. claimed that the refugees were not entitled to protection under the Convention, because they did not meet the definition of a refugee (i.e. they had not requested asylum before they attempted to come on shore and they had not managed to come on shore)31 and because they were economic rather than political refugees.32 Second, the U.S. has detained an estimated 4,000 refugees indefinitely, because they have been declared deportable but their home countries will not take them back.33 Only very recently has the U.S. Supreme Court declared that there is a six-month presumptive detention period when there is not a substantial likelihood of removal.34 The individuals in this recent Supreme Court Case, Sergio Suarez Martinez and Daniel Benitez, were arbitrarily detained for over four years.
The U.S. continues to propose anti-immigration policies that attempt to legitimize violations of migrants’ right to liberty. For example, a recent bill proposed by the U.S. House of Representatives proposes suspending the writ of habeas corpus to one appeal to the federal courts of appeal.35 Another section of the same bill would authorize the indefinite detention of “dangerous” non-citizens without any court review.36
The human rights of children are likely being violated by U.S. immigration policies, also. “In the first half of 2003, more than 6,700 Mexican children [unaccompanied by family] were deported from the [U.S.] to Mexico [ ], higher than in all of 2002.37 These children and the more than 8,000 children returned to Mexico in 1999 are not returned to families; they are often cared for in publicly funded hostels.38
Australia also has violated the due process rights of asylum seekers under the Convention on the Status of Refugees. Australia revised its immigration policies (called the “Pacific Solution’) in reaction to the Tampa asylum seeker crisis.39 Under the new legislation, Australia refused entry to approximately 1,000 Afghan and Iraqi boat people attempting to enter Australian shores before they were either turned back, died in the process (in one case 350 out of 400 on board one boat died), or were rescued or captured by Australia and detained under mandatory detention law on offshore islands.40
In violation of international norms, Australia legalized mandatory detention in 1992 by preventing the release of asylum seekers who arrived in Australia by boat.41 As a result of this policy, “detainees wait up to five years for the immigration claims to be processed.”42 While such treatment of criminals would be considered punishment in violation of national and international laws, an Australian Court determined that the matter of the detention of refugees was “purely civil [emphasis added] in nature and detention was not a form of punishment since the detainees were free to leave.”43
Arbitrary detention policies in Australia are also causing other human rights violations, especially related to children which include: the threat of sexual abuse; lasting mental, physical and psychological effects; substandard medical treatment; and limited educational opportunities.44 Several accounts of sexual abuse have been prosecuted and numerous more accounts are alleged. “The mixing of children with unrelated adults makes these assaults possible.”45
Australia makes the claim that “mandatory detention is effective as a deterrent; praising the policy as an economic boon for communities that house centers; minimizing the impact of detention centers by labeling them “processing centres”” that save lives and save space.46 The reality in Australia’s detention centers is that they are harbors of potential child abuse, unsatisfactory medical treatment, and inadequate educational facilities.47 Furthermore, there are various obstacles to remedy the violations of migrant rights at these centers. For example, because the Australian government has outsourced the management of the centers to a private corporation, “obtaining needed information about detention conditions can be difficult because the government contract with [the private contractor] is protected by the doctrine of “commercial confidentiality,” which prevents public access to company records otherwise available under Australia’s Freedom of Information Act.”48 Privatizing public services should not result in lack of accountability.
4. The Quest For Border Security and Control Causes Human Rights Violations
“Unauthorized immigration has been and will continue to be a fundamental factor in the development of humanity. When we discuss immigrants, we discuss human beings. Therefore, migration should not be evaluated through only economic, political, or judicial approaches. Ethics should guide any decisions regarding the political handling of migration. Unfortunately, ethics and human rights are not paramount in immigration politics.”49
Immigration policy is an exercise in severe and aggressive control of borders that does not bring a halt to undocumented migration. Migrants are driven to use more dangerous routes, because migrants will continue to persist to work in the underground economies of developed counties like the U.S.50 In the U.S., the number of border apprehensions has decreased, while the number and rate of deaths in proportion to the rate of apprehensions “has grown from fifteen deaths per every 100,000 apprehensions in 1999, to thirty-five deaths for every 100,000 apprehensions in 2002.51
Underlying regressive immigration policies is the view that immigrants are either criminals or terrorists. Such views explain the criminalization and militarization of immigration policy and the transformation of the unauthorized migrant from a social actor who has historically behaved as a peaceful person whose only intention is to find work [or reunite with his family] into the collateral damage of a low-intensity military conflict.52
Finally, such approaches to immigration policy have spawned the illegal smuggling industry leading to an increase in border deaths and exposing migrants to further human rights violations such as “robbery, swindling, molestation, and other assaults.”53
If governments truly intend to deal with illegal immigration, they should focus more on prosecuting employers which violate laws controlling the hiring of migrant workers and less on prosecuting undocumented migrants. Since the late 1990’s the investigation into businesses in the U.S. that hire undocumented migrants have dropped drastically.54 This is despite evidence that prosecuting employers is a more productive way to stem the flow of illegal immigration.
5. Migrants have a right to be safe and free
Consumer demand in developed countries for cheap labor to harvest food, manufacture clothing, and provide domestic and service work in homes, restaurants, and hotels depends on a constant flow of migrants. The current structure of immigration policies is to fill this demand at the expense of migrants’ human rights. It is fundamentally unjust that migrants are pulled from their home countries by the promise of employment to meet this demand and not treated with basic human dignity and respect. The number of migrants in developed countries is expected to grow by at least 1 billion during the next 45 years.55 The situation for migrants is already critical today. The situation will only be catastrophic with a more than fivefold increase in the number of migrants by 2050.
There are some signs of reforming immigration policy. In 1999, Spain originally debated and approved the Organic Law on Rights and Freedoms of Foreigners in Spain and Their Social Integration (NLOE).56 There was a consensus in Spain to significantly expand the rights of documented and undocumented foreigners, for example, to provide free medical care and appeal rights for visa denials.57 Unfortunately, the strategic lines of the EU approach in 1999 were in the opposite direction, because “the ex-colonial powers of Europe at now seeing their former colonies become points of origin for large scale migration.58 The EU’s vision of immigration is not one of social integration but one of exclusion.59 Fortunately, Spain is managing to reform its immigration policies as illustrated by its recent legalization program.
In another example suggesting the necessity for immigration reform, a group of Australian legislators concluded that “the current system of mandatory detention [ ] is economic irrationalism at its worst. They argued that the administrative reasons for detention are false and the costs far outweigh the purported benefits.”60
Migrants’ rights to safety and liberty are protected under the following articles of the International Covenant on Civil and Political Rights.
Article 6: right to life and not to be arbitrarily deprived of life.
Article 7: not be subjected to torture or to cruel, inhuman and degrading treatment or
Article 9: right to liberty and security of person.
Article 10: all persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person.
Over 150 countries have ratified this Covenant. All countries need to cooperate in their immigration policies to ensure migrants’ rights are fully protected accordingly.
Migrant rights are also protected under the Convention on the Protection of the Rights of All Migrant Workers [Documented and Undocumented] and Members of Their Families.
Article 14: right to protection by law against any arbitrary or unlawful interference with
privacy or family.
Article 16: right to liberty and security of person (protection under arrest, detention, or
Article 17: when deprived of liberty right to treatment with humanity and respect.
Article 10: not be subjected to torture or to cruel, inhuman and degrading treatment or
Article 33: right to be fully informed.
Articles 67-71: Promotion of sound, equitable, humane and lawful conditions in connection
with international migration of workers and members of their families.
Unfortunately, as of the writing of this paper, only 27 countries have ratified this Convention from receiving countries. Even though nations have a right under the Covenant to govern the admission of migrant workers and members of their family,61 migrants’ rights cannot be abrogated.62
6. Alternatives Which Guarantee Migrant Safety and Liberty
What is needed in immigration policy are programs that reflect a balance between the national security interests and employment interests of receiving countries, the development needs of the typical country of origin, and the economic and cultural interests of migrants.
International cooperation in immigration policy reflecting both national and migrant interests is the best way to manage the inevitable growth in worldwide migration. Such cooperation in immigration policy between receiving countries and countries of origin should:
Encourage tolerance and integration not criminalization, as the overwhelming majority of migrants are peaceful. Spain’s NLOE policy mentioned above is one example of such a policy. Canada’s immigration policies also reflect this progressive approach to immigration. By “depoliticizing immigration policies, Canada has been able to respond quickly to sudden changes in the market for migrants and to extend broader welcome to value-increasing immigrants.” 63
Promote economic development in countries of origin, as these countries are often economically poor.
Protect migrant worker labor rights in receiving countries, as this would stem the flow of demand for cheap labor.
Reverse the trend of criminalizing the migrant and increase the prosecutions of employers that violate laws regulating the hiring of migrants.
Empower migrants with the information they need to understand the risks of migrating at dangerous border crossings. Mexico is to be commended for its publication and wide distribution to migrants of a handbook that provides border safety tips to migrants crossing the U.S.-Mexican border illegally. The booklet is available online, at Mexican consulates in the U.S., government offices in Mexico, and inside magazines throughout Mexico.64
Discourage unnecessary detention and outlaw mandatory detention which violate migrants’ rights under Article 31 of the Convention Relating to the Status of Refugees and lead to other human rights abuses. For example, the majority of refugees (90%) attempting to enter Australia during the Tampa incidents were unnecessarily detained, because they were determined to be eligible for asylum under the 1951 Convention.65
The demand for cheap labor is a primary driver behind the flow of undocumented workers. Sending countries benefit from the reduction in the number of unemployed workers. Receiving countries benefit from the low cost to pay these workers. States need to adopt immigration policies that recognize these economic realities of migration and that recognize the increasing risk of death caused by current border policies.
In its report for the 61st session of the Commission on Human Rights, the Working Group on Arbitrary Detention acknowledges that several countries have implemented “new immigration laws jeopardizing the rights of immigrants to be free from arbitrary detention.”66 States should reconsider using “administrative detention” mechanisms for the majority of refugees and undocumented migrants that are peaceful. States should ensure that the treatment of children in detention conform with the protections granted to children under the Convention on the Rights of the Child. Finally, States should be held accountable for violations of human rights in detention camps managed by private contractors and that information regarding detainees in such centers should not be allowed to be kept secret under the doctrine of “commercial confidentiality” laws.
The Expert Roundtable organized by the United Nations High Commissioner for Refugees and the Graduate Institute of International Studies, Geneva, Switzerland met in November 2001 to specifically address the issue of protections granted to migrants crossing borders unlawfully.67 They came to the following conclusions:
Detention is an exceptional measure.
Detention should not be extended to punish.
Protracted asylum procedures are not a justification for extended detention.
National practices should be consistent with regional and universal human rights treaties.
States are reminded of the obligation to report the status of their refugees under Article 35 of the Convention.
The Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families recognizes the right of nations to regulate immigration while respecting migrants’ rights to life, safety, and liberty. It is necessary for the humane treatment of migrants and essential to the world economy. All nations are therefore encouraged to sign and ratify this essential treaty.